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This is a Bill, not an Act. For current law, see the Acts databases.


COMMERCIAL AGENTS BILL 2010

          Queensland



Commercial Agents Bill 2010

 


 

 

Queensland Commercial Agents Bill 2010 Contents Page Part 1 Preliminary Division 1 Introduction 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 4 Exemption--public officials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5 Exemption--liquidators, controllers and receivers . . . . . . . . . . . . 11 6 Exemption--financial institutions and trustee companies . . . . . . 12 Division 2 Object of Act 7 Main object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Division 3 Interpretation 8 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 9 Meaning of in charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Part 2 Licensing Division 1 How to obtain a licence 10 Steps involved in obtaining a licence . . . . . . . . . . . . . . . . . . . . . . 14 Division 2 Applications for licence 11 Application for licence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 12 Applicant must state business address . . . . . . . . . . . . . . . . . . . . 15 13 Requirement to give information or material about application . . 16 14 Applicant intending to carry on business to advise name of auditor ........................................ 17 Division 3 Suitability of applicants and licensees 15 Suitability of applicants and licensees--individuals . . . . . . . . . . . 17 16 Suitability of applicants and licensees--corporations . . . . . . . . . 18 17 Chief executive must consider suitability of applicants and licensees ..................................... 18 18 Public trustee is a suitable person . . . . . . . . . . . . . . . . . . . . . . . . 20

 


 

Commercial Agents Bill 2010 Contents 19 Chief executive of a department is a suitable person . . . . . . . . . . 20 20 Investigations about suitability of applicants and licensees . . . . . 20 21 Costs of criminal history report. . . . . . . . . . . . . . . . . . . . . . . . . . . 21 22 Confidentiality of criminal history . . . . . . . . . . . . . . . . . . . . . . . . . 22 23 Requirement to give chief executive information or material about suitability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Division 4 Eligibility for licence 24 Eligibility for licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Division 5 Issue of licences 25 Chief executive may issue or refuse to issue licence . . . . . . . . . . 24 26 Licence--public trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 27 Licence--chief executive of department. . . . . . . . . . . . . . . . . . . . 26 28 Licence--conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Division 6 Restrictions on performing activities under licences 29 Restriction--corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 30 Restriction--individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 31 Restriction--conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Division 7 Renewal and restoration of licences Subdivision 1 Renewal 32 Application for renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 33 Chief executive may renew or refuse to renew licence. . . . . . . . . 29 34 Licence taken to be in force while application for renewal is considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Subdivision 2 Restoration 35 Application for restoration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 36 Chief executive may restore or refuse to restore licence . . . . . . . 32 37 Licence taken to be in force while application for restoration is considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Division 8 Dealings with licences Subdivision 1 Transfer of licence 38 Transfer of licence prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Subdivision 2 Substitute licences 39 Appointment of substitute licensee--principal licensee--individual ............................. 34 40 Appointment of substitute licensee--employed licensee in charge of a licensee's business at a place . . . . . . . . . . . . . . . . . . 36 41 Chief executive may appoint or refuse to appoint substitute licensee ....................................... 37 Page 2

 


 

Commercial Agents Bill 2010 Contents 42 Substitute licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 43 Limitation on period of substitution. . . . . . . . . . . . . . . . . . . . . . . . 39 Subdivision 3 General 44 Amendment of licence conditions. . . . . . . . . . . . . . . . . . . . . . . . . 39 45 Return of licence for amendment of conditions or when suspended or cancelled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 46 Surrender of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 47 Licence may be deactivated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Division 9 Immediate suspension and cancellation of licences 48 Immediate suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 49 Immediate cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Division 10 General provisions about licences 50 Form of licence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 51 Term of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 52 Replacement licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 53 Register of licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 54 Licensees to notify chief executive of changes in circumstances. 47 Part 3 Authorisation and responsibilities Division 1 Commercial agents' authorisation and responsibilities Subdivision 1 Commercial agent licence 55 What a commercial agent licence authorises. . . . . . . . . . . . . . . . 48 Subdivision 2 Responsibilities of persons in charge of a licensee's business for commercial subagents 56 Responsibility for acts and omissions of commercial subagent . . 48 Division 2 Conduct provisions Subdivision 1 Carrying on business 57 Carrying on of business under commercial agent licence . . . . . . 49 58 Licensee to be in charge of commercial agent's business at a place .......................................... 49 Subdivision 2 Appointment 59 Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 60 Appointment of commercial agent . . . . . . . . . . . . . . . . . . . . . . . . 51 61 Form of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 62 Proposal for assignment of appointments . . . . . . . . . . . . . . . . . . 52 Subdivision 3 Process serving 63 Engagement of commercial agent for process serving . . . . . . . . 53 Page 3

 


 

Commercial Agents Bill 2010 Contents Subdivision 4 Recovery of expenses and costs 64 Restriction on remedy for reward or expense. . . . . . . . . . . . . . . . 54 65 Recovery of costs of commercial agent . . . . . . . . . . . . . . . . . . . . 54 Subdivision 5 Code of conduct 66 Code of conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 67 Complaints about conduct and action chief executive may take . 55 Division 3 General 68 Registered office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 69 Commercial agent must notify chief executive of change in place of business etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 70 Publication of licensee's name . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 71 Principal licensee must keep employment register . . . . . . . . . . . 57 Division 4 Offences 72 Acting as commercial agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 73 Pretending to be commercial subagent . . . . . . . . . . . . . . . . . . . . 59 74 Commercial agent must not act for more than 1 party . . . . . . . . . 60 75 Production of licence or registration certificate. . . . . . . . . . . . . . . 60 76 Employment of persons in commercial agent's business . . . . . . . 60 77 Licence not to be used improperly . . . . . . . . . . . . . . . . . . . . . . . . 61 78 Unlawful entry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 79 Misrepresentation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 80 Impersonating commercial agents . . . . . . . . . . . . . . . . . . . . . . . . 62 Part 4 Employee registration Division 1 Activities authorised under registration certificate 81 What a registration certificate authorises . . . . . . . . . . . . . . . . . . . 63 Division 2 How to obtain registration 82 Steps involved in obtaining registration . . . . . . . . . . . . . . . . . . . . 63 Division 3 Applications for registration 83 Application for registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 84 Requirement to give chief executive information or material about application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Division 4 Suitability of applicants 85 Suitability of applicants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 86 Chief executive must consider suitability of applicants. . . . . . . . . 65 87 Investigations about suitability of applicants. . . . . . . . . . . . . . . . . 67 88 Costs of criminal history report. . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Page 4

 


 

Commercial Agents Bill 2010 Contents 89 Confidentiality of criminal history . . . . . . . . . . . . . . . . . . . . . . . . . 68 90 Requirement to give chief executive information or material about suitability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Division 5 Eligibility for registration 91 Eligibility for registration as commercial subagent . . . . . . . . . . . . 69 Division 6 Issue of registration certificate 92 Chief executive may issue or refuse to issue registration certificate ...................................... 70 93 Registration certificate--conditions . . . . . . . . . . . . . . . . . . . . . . . 70 Division 7 Renewal and restoration of registration certificates Subdivision 1 Renewal 94 Application for renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 95 Chief executive may renew or refuse to renew registration certificate ...................................... 72 96 Registration certificate taken to be in force while application for renewal is considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Subdivision 2 Restoration 97 Application for restoration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 98 Chief executive may restore or refuse to restore registration certificate ........................................ 74 99 Registration certificate taken to be in force while application for restoration is considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Division 8 Dealings with registration certificates Subdivision 1 Transfer of registration certificate 100 Transfer of registration certificate prohibited. . . . . . . . . . . . . . . . . 75 Subdivision 2 General 101 Amendment of registration certificate conditions . . . . . . . . . . . . . 75 102 Return of registration certificate for amendment of conditions . . . 77 103 Surrender of registration certificate . . . . . . . . . . . . . . . . . . . . . . . 77 Division 9 Immediate suspension and cancellation of registration certificates 104 Immediate suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 105 Immediate cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Division 10 General provisions about commercial subagent registration 106 Form of registration certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 107 Term of registration certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 108 Replacement certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 109 Register of registration certificates . . . . . . . . . . . . . . . . . . . . . . . . 80 Page 5

 


 

Commercial Agents Bill 2010 Contents 110 Commercial subagents to notify chief executive of changes in circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Part 5 Trust accounts 111 Opening and maintaining trust accounts . . . . . . . . . . . . . . . . . . . 81 Part 6 Claims against the fund 112 Definitions for pt 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 113 Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 114 Persons who can not claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Part 7 Jurisdiction of QCAT Division 1 Preliminary 115 Definitions for pt 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Division 2 Jurisdiction 116 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Division 3 Disciplinary proceedings 117 Grounds for starting disciplinary proceedings . . . . . . . . . . . . . . . 84 118 Starting disciplinary proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 87 Division 4 Review proceedings 119 Person dissatisfied with chief executive's decision may seek review ......................................... 87 120 Stay of operation of decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 121 QCAT may extend time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Division 5 Proceedings generally Subdivision 1 QCAT's orders 122 Orders QCAT may make on disciplinary hearing . . . . . . . . . . . . . 88 123 Stopping contraventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Subdivision 2 Chief executive's right of appeal 124 Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Part 8 Injunctions and undertakings Division 1 Injunctions 125 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 126 Who may apply for injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 127 Grounds for injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 128 Court's powers for injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 129 Terms of injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 130 Undertakings as to costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Page 6

 


 

Commercial Agents Bill 2010 Contents Division 2 Undertakings 131 Chief executive may seek undertaking after contravention . . . . . 93 132 Undertaking about other matter . . . . . . . . . . . . . . . . . . . . . . . . . . 93 133 Variation and withdrawal of undertakings. . . . . . . . . . . . . . . . . . . 94 134 Enforcement of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 135 Register of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Part 9 General contraventions, evidentiary matters and legal proceedings Division 1 General contraventions 136 Wrongful conversion and false accounts . . . . . . . . . . . . . . . . . . . 96 137 Offence to charge fee for providing documents etc. . . . . . . . . . . . 97 138 Offence to ask for, or receive, excess or improper remuneration . 97 139 Offence to lend or borrow licence. . . . . . . . . . . . . . . . . . . . . . . . . 98 140 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . 98 141 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Division 2 Evidentiary matters 142 Evidentiary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 143 Entries in licensee's documents . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Division 3 Proceedings 144 Proceedings for an offence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 145 Responsibility for acts or omissions of representatives . . . . . . . . 102 146 Executive officers must ensure corporation complies with Act. . . 103 147 Power of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 148 Allegations of false or misleading representations or statements etc. ........................................... 104 Part 10 General 149 Public warning statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 150 Civil remedies not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 151 Criminal Proceeds Confiscation Act 2002 not limited. . . . . . . . . . 105 152 Delegation--chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 153 Approved forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 154 Review of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 155 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Part 11 Transitional provisions 156 Definitions for pt 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 157 Existing licences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Page 7

 


 

Commercial Agents Bill 2010 Contents 158 Existing registration certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 107 159 Existing applications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 160 Restoration of expired existing licences . . . . . . . . . . . . . . . . . . . . 109 161 Restoration of expired existing registration certificates . . . . . . . . 110 162 Previous refusals of applications . . . . . . . . . . . . . . . . . . . . . . . . . 110 163 Deactivated existing licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 164 Suspended existing licences and existing registration certificates ................................ 111 165 Existing appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 166 Disciplinary action relating to pre-commencement conduct . . . . . 112 167 Continuation of reviews under the repealed Act . . . . . . . . . . . . . . 112 168 Injunctions relating to pre-commencement conduct . . . . . . . . . . . 113 169 Undertakings relating to pre-commencement conduct. . . . . . . . . 114 170 Proceedings for particular offences under repealed Act. . . . . . . . 115 171 Existing delegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 172 Existing registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 173 Existing fines and fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Part 12 Minor and consequential amendments 174 Minor and consequential amendments . . . . . . . . . . . . . . . . . . . . 116 Schedule 1 Minor and consequential amendments . . . . . . . . . . . . . . . . . . 117 Fire and Rescue Service Act 1990. . . . . . . . . . . . . . . . . . . . . . . . 118 State Penalties Enforcement Act 1999 . . . . . . . . . . . . . . . . . . . . . 118 Schedule 2 Decisions subject to review . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Schedule 3 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Page 8

 


 

2010 A Bill for An Act to comprehensively provide for the regulation of the activities, licensing and conduct of commercial agents and their employees, to protect consumers against particular undesirable practices, and to make minor and consequential amendments of the Fire and Rescue Service Act 1990 and the State Penalties Enforcement Act 1999, for particular purposes

 


 

Commercial Agents Bill 2010 Part 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Division 1 Introduction 3 1 Short title 4 This Act may be cited as the Commercial Agents Act 2010. 5 2 Commencement 6 This Act commences on a day to be fixed by proclamation. 7 3 Act binds all persons 8 (1) This Act binds all persons, including the State, and, so far as 9 the legislative power of Parliament permits, the 10 Commonwealth and the other States. 11 (2) Nothing in this Act makes the State, the Commonwealth or 12 any other State liable to be prosecuted for an offence. 13 4 Exemption--public officials 14 (1) Section 72 does not apply to-- 15 (a) a bailiff serving a notice, claim, application, summons 16 or other process; or 17 (b) a person, other than a commercial agent, who is an 18 enforcement officer or a member of the staff of the State 19 Penalties Enforcement Registry under the State 20 Penalties Enforcement Act 1999-- 21 (i) collecting, or requesting payment of, debts; or 22 Page 10

 


 

Commercial Agents Bill 2010 Part 1 Preliminary [s 5] (ii) serving a notice, claim, application, summons or 1 other process. 2 (2) In this section-- 3 bailiff means a bailiff appointed under the Supreme Court Act 4 1995, part 12, the District Court of Queensland Act 1967 or 5 the Magistrates Courts Act 1921. 6 5 Exemption--liquidators, controllers and receivers 7 (1) This section applies to-- 8 (a) a person, appointed under the Corporations Act, as an 9 administrator of a corporation that is authorised under a 10 licence to perform an activity; or 11 (b) a person, appointed under the Corporations Act, as an 12 administrator of a deed of company arrangement for a 13 corporation that is authorised under a licence to perform 14 an activity; or 15 (c) a person, appointed under the Corporations Act, as a 16 liquidator, or controller of property, of a corporation that 17 is authorised under a licence to perform an activity; or 18 (d) a person, appointed under the Administration Act, as a 19 receiver of an entity that is authorised under a licence to 20 perform an activity under this Act. 21 (2) The person is exempt from the following provisions while 22 performing the activity for the business carried on under the 23 licence in accordance with the conditions applying to the 24 licence-- 25 section 55 26 part 3, division 2, subdivision 1 27 section 60 28 part 3, division 3. 29 Page 11

 


 

Commercial Agents Bill 2010 Part 1 Preliminary [s 6] 6 Exemption--financial institutions and trustee companies 1 (1) Part 3 does not apply to a financial institution or trustee 2 company. 3 (2) In this section-- 4 trustee company means-- 5 (a) a trustee company under the Trustee Companies Act 6 1968; or 7 (b) the public trustee when the public trustee is-- 8 (i) performing the activities that may be performed by 9 a trustee company; or 10 (ii) exercising the powers that may be exercised by a 11 trustee company; or 12 (iii) holding an office that may be held by a trustee 13 company. 14 Division 2 Object of Act 15 7 Main object 16 (1) The main object of this Act is to provide a system for 17 licensing and regulating persons as commercial agents, and 18 for registering and regulating persons as commercial 19 subagents, that achieves an appropriate balance between-- 20 (a) the need to regulate for the protection of consumers; and 21 (b) the need to promote freedom of enterprise in the market 22 place. 23 (2) The object is to be achieved mainly by-- 24 (a) ensuring-- 25 (i) only suitable persons with appropriate 26 qualifications are licensed or registered; and 27 (ii) persons who carry on business or are in charge of a 28 licensee's business at a place under the authority of 29 Page 12

 


 

Commercial Agents Bill 2010 Part 1 Preliminary [s 8] a commercial agent licence maintain close 1 personal supervision of the way the business is 2 carried on; and 3 (b) providing-- 4 (i) protection for consumers in their dealings with 5 licensees and their employees; and 6 (ii) a legislative framework within which persons 7 performing activities for licensees may lawfully 8 operate; and 9 (c) regulating fees and commissions that can be charged for 10 particular transactions; and 11 (d) promoting administrative efficiency by providing that-- 12 (i) the chief executive is responsible for licensing; and 13 (ii) QCAT is responsible for reviewing particular 14 decisions of the chief executive; and 15 (iii) QCAT is responsible for disciplinary matters; and 16 (e) establishing a right for persons who suffer financial loss 17 because of their dealings with persons regulated under 18 this Act to apply for compensation from the fund; and 19 (f) increasing flexibility in enforcement measures through 20 codes of conduct, injunctions and undertakings. 21 Division 3 Interpretation 22 8 Definitions 23 The dictionary in schedule 3 defines particular words used in 24 this Act. 25 9 Meaning of in charge 26 (1) A person is in charge of a licensee's business at a place where 27 the licensee carries on business only if the person personally 28 Page 13

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 10] supervises, manages or controls the conduct of the licensee's 1 business at the place. 2 (2) In this section-- 3 licensee's business means the licensee's business carried on 4 under the authority of the licensee's licence. 5 Part 2 Licensing 6 Division 1 How to obtain a licence 7 10 Steps involved in obtaining a licence 8 (1) A person who wishes to obtain a licence must be a suitable 9 person to hold a licence under division 3. 10 (2) The person must apply for the licence by-- 11 (a) giving the chief executive an application showing, 12 among other things, the person is eligible to obtain the 13 licence; and 14 (b) paying-- 15 (i) the fees prescribed under a regulation; and 16 (ii) if, before or when the application is made, a 17 criminal history costs requirement is made of the 18 applicant--the amount of the costs required to be 19 paid; and 20 (c) giving the chief executive the other information required 21 under section 12 and, if the person is required under 22 section 111 to keep a trust account, section 14. 23 (3) In deciding the person's application the chief executive must 24 have regard, among other things, to-- 25 Page 14

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 11] (a) the person's suitability to hold a licence under this Act; 1 and 2 (b) the person's eligibility to hold the licence. 3 Division 2 Applications for licence 4 11 Application for licence 5 (1) An applicant for a licence must-- 6 (a) apply to the chief executive in the approved form; and 7 (b) state the term of the licence being applied for; and 8 (c) establish the applicant's eligibility for a licence; and 9 (d) state the names and addresses of the applicant's business 10 associates; and 11 (e) provide any information the chief executive reasonably 12 requires to decide whether the applicant is a suitable 13 person to hold a licence. 14 (2) The application must be accompanied by-- 15 (a) the application fee prescribed under a regulation; and 16 (b) the licence issue fee prescribed under a regulation; and 17 (c) if, before or when the application is made, a criminal 18 history costs requirement is made of the applicant--the 19 amount of the costs required to be paid; and 20 (d) for an applicant who is an individual, 2 recent colour 21 photographs of the applicant of a size prescribed under a 22 regulation and certified as photographs of the applicant 23 in the way prescribed under a regulation. 24 12 Applicant must state business address 25 (1) The applicant must also state in the applicant's application-- 26 (a) if the applicant intends carrying on business under the 27 licence immediately after the issue of the licence--the 28 Page 15

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 13] place or places in Queensland where the applicant 1 proposes to carry on business under the licence; or 2 (b) if the applicant does not intend carrying on business 3 under the licence immediately after the issue of the 4 licence-- 5 (i) the capacity in which the applicant intends 6 performing activities under the licence and the 7 address where the activities are to be performed 8 (business address); and 9 (ii) if the applicant intends to be a person in charge of a 10 licensee's business at a place of business--the 11 name of the applicant's employer and the address 12 of the place of business where the applicant is to be 13 in charge (also a business address). 14 Examples of capacity in which activities may be performed-- 15 person in charge of a corporation's business 16 licensed employee of a licensee 17 Example of business address of an employed licensee-- 18 the address of the person's employer's place of business 19 where the person generally reports for work 20 (2) If the applicant intends to carry on business under the licence 21 at more than 1 place, the applicant must state in the 22 application the place the applicant intends to be the 23 applicant's principal place of business. 24 (3) A place of business or an address under this section must be a 25 place where a document can be served personally. 26 (4) A place of business or an address must not be a post office 27 box. 28 13 Requirement to give information or material about 29 application 30 (1) This section applies to an applicant for a licence. 31 (2) The chief executive may, by written notice given to the 32 applicant, require the applicant to give the chief executive 33 Page 16

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 14] within a stated reasonable period information or material the 1 chief executive reasonably considers is needed to consider the 2 applicant's application for the licence. 3 (3) The applicant is taken to have withdrawn the application if, 4 within the stated reasonable period, the applicant fails to 5 comply with the chief executive's requirement. 6 14 Applicant intending to carry on business to advise name 7 of auditor 8 (1) If the applicant intends carrying on business under a licence 9 and is required under section 111 to keep a trust account, the 10 applicant must-- 11 (a) state in the applicant's application the name and 12 business address of an auditor appointed by the 13 applicant to audit the trust account; and 14 Note-- 15 See the Administration Act, section 26 (Principal licensee must 16 appoint auditor). 17 (b) give the chief executive evidence that the auditor has 18 accepted the appointment as auditor. 19 (2) In this section-- 20 auditor see the Administration Act, section 25. 21 Division 3 Suitability of applicants and 22 licensees 23 15 Suitability of applicants and licensees--individuals 24 (1) An individual is not a suitable person to hold a licence if the 25 person is-- 26 (a) an insolvent under administration; or 27 (b) a person who has been convicted, in Queensland or 28 elsewhere, within the preceding 5 years of a serious 29 offence; or 30 Page 17

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 16] (c) currently disqualified from holding a licence or 1 registration certificate; or 2 (d) a person the chief executive decides under section 17 is 3 not a suitable person to hold a licence. 4 (2) An individual who is not a suitable person can not hold a 5 licence. 6 16 Suitability of applicants and licensees--corporations 7 (1) A corporation is not a suitable person to hold a licence if an 8 executive officer of the corporation is-- 9 (a) an insolvent under administration; or 10 (b) a person who has been convicted, in Queensland or 11 elsewhere, within the preceding 5 years of a serious 12 offence; or 13 (c) a person the chief executive decides under section 17 is 14 not a suitable person to hold a licence. 15 (2) A corporation that is not a suitable person can not hold a 16 licence. 17 17 Chief executive must consider suitability of applicants 18 and licensees 19 (1) The chief executive must, when deciding whether a person is 20 a suitable person to hold a licence, consider all of the 21 following things-- 22 (a) the character of the person; 23 (b) the character of the person's business associates; 24 (c) whether the person held a licence under a relevant Act 25 that was suspended or cancelled under the relevant Act; 26 (d) whether an amount has been paid from the fund because 27 the person did, or omitted to do, something that gave 28 rise to the claim against the fund; 29 Page 18

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 17] (e) whether the person has been disqualified under a 1 relevant Act from being the holder of a licence within 2 the meaning of the relevant Act, or an executive officer 3 of a corporation; 4 (f) for an individual-- 5 (i) the person's criminal history; and 6 (ii) whether the person has been an insolvent under 7 administration; and 8 (iii) whether the person has been convicted of an 9 offence against a relevant Act or the 10 Administration Act; and 11 (iv) whether the person is capable of satisfactorily 12 performing the activities of a licensee; and 13 (v) whether the person's name appears in the register 14 of disqualified company directors and other 15 officers under the Corporations Act; 16 Note-- 17 See the Corporations Act, section 1274AA (Register of 18 disqualified company directors and other officers). 19 (g) for a corporation-- 20 (i) whether the corporation has been placed in 21 receivership or liquidation; and 22 (ii) whether an executive officer of the corporation has 23 been an insolvent under administration; and 24 (iii) whether an executive officer of the corporation has 25 been convicted of an offence against a relevant Act 26 or the Administration Act; and 27 (iv) whether each executive officer of the corporation is 28 a suitable person to hold a licence; 29 (h) another thing the chief executive may consider under 30 this Act. 31 (2) If the chief executive decides a person is not a suitable person 32 to hold a licence, the chief executive must give the person an 33 Page 19

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 18] information notice about the decision within 14 days after the 1 decision is made. 2 (3) In this section-- 3 fund includes the claim fund under the repealed Act. 4 relevant Act means this Act, an Agents Act, the repealed Act 5 or a corresponding law. 6 18 Public trustee is a suitable person 7 The corporation sole called The Public Trustee of Queensland 8 is taken to be a suitable person to hold a licence. 9 19 Chief executive of a department is a suitable person 10 The chief executive of a department is taken to be a suitable 11 person to hold a licence. 12 20 Investigations about suitability of applicants and 13 licensees 14 (1) The chief executive may make investigations about the 15 following persons to help the chief executive decide whether 16 an applicant or licensee is a suitable person to hold a 17 licence-- 18 (a) the applicant or licensee; 19 (b) if the applicant or licensee intends carrying on, or 20 carries on, business in partnership or in conjunction with 21 others--each member of the partnership or each person 22 with whom the applicant or licensee intends carrying on, 23 or carries on, business in partnership or in conjunction; 24 (c) if the applicant or licensee is a corporation--the 25 corporation's executive officers; 26 (d) a business associate of the applicant or licensee. 27 (2) Without limiting subsection (1), the chief executive may ask 28 the commissioner of the police service for a report about the 29 criminal history of any of the persons. 30 Page 20

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 21] (3) The commissioner must give the report to the chief executive. 1 (4) However, the report is required to contain only criminal 2 history in the commissioner's possession or to which the 3 commissioner has access. 4 (5) If the criminal history of the person includes a conviction 5 recorded against the person, the commissioner's report must 6 be written. 7 (6) In this section-- 8 applicant includes a nominated person mentioned in section 9 39(3) or 40(4). 10 21 Costs of criminal history report 11 (1) The chief executive may require an applicant or licensee to 12 pay the reasonable, but no more than actual, costs of obtaining 13 a report under section 20 about-- 14 (a) the applicant or licensee; or 15 (b) if the applicant or licensee intends carrying on, or 16 carries on, business in partnership or in conjunction with 17 others--each member of the partnership or each person 18 with whom the applicant or licensee intends carrying on, 19 or carries on, business in partnership or in conjunction; 20 or 21 (c) if the applicant or licensee is a corporation--the 22 corporation's executive officers; or 23 (d) a business associate of the applicant or licensee; or 24 (e) if the applicant has made an application under section 25 39(3) or 40(4)--the person nominated by the applicant 26 under section 39(3) or 40(4). 27 (2) The requirement is a criminal history costs requirement. 28 (3) The requirement is sufficiently made of the applicant or 29 licensee if it is made generally of applicants in the relevant 30 approved form or notified on the department's website for 31 applicants or licensees. 32 Page 21

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 22] (4) The chief executive must refund to an applicant an amount 1 paid under the requirement if-- 2 (a) the chief executive refuses the application without 3 asking for the report; or 4 (b) the applicant withdraws the application before the chief 5 executive asks for the report. 6 (5) In this section-- 7 applicant includes proposed applicant. 8 22 Confidentiality of criminal history 9 (1) A public service employee performing functions under this 10 Act must not, directly or indirectly, disclose to anyone else a 11 report about a person's criminal history, or information 12 contained in the report, given under section 20. 13 Maximum penalty--100 penalty units. 14 (2) However, the person does not contravene subsection (1) if-- 15 (a) disclosure of the report or information to someone else 16 is authorised by the chief executive to the extent 17 necessary to perform a function under or relating to this 18 Act; or 19 (b) the disclosure is otherwise required or permitted by law. 20 (3) The chief executive must destroy a written report about a 21 person's criminal history as soon as practicable after 22 considering the person's suitability to hold a licence. 23 23 Requirement to give chief executive information or 24 material about suitability 25 (1) This section applies to an applicant for the issue of a licence 26 or the renewal or restoration of a licence. 27 (2) The chief executive may, by written notice given to the 28 applicant, require the applicant to give the chief executive 29 within a stated reasonable period information or material the 30 Page 22

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 24] chief executive reasonably considers is needed to establish the 1 applicant's suitability for the licence. 2 (3) The applicant is taken to have withdrawn the application if, 3 within the stated reasonable period, the applicant fails to 4 comply with the chief executive's requirement. 5 Division 4 Eligibility for licence 6 24 Eligibility for licence 7 (1) An individual is eligible to obtain a licence only if the 8 individual-- 9 (a) is at least 18 years; and 10 (b) has the educational or other qualifications for a licence 11 prescribed under a regulation. 12 (2) An individual is to be taken to satisfy the requirement 13 mentioned in subsection (1)(b) if the chief executive is 14 satisfied the individual-- 15 (a) has a comparable qualification; or 16 (b) within 2 years before the day the individual's 17 application for a licence is received by the chief 18 executive-- 19 (i) has been licensed as a commercial agent; or 20 (ii) has been the holder of an existing licence. 21 (3) A corporation is eligible to obtain a licence only if-- 22 (a) a person in charge of the corporation's business at a 23 place is a commercial agent; and 24 (b) each director of the corporation would be a suitable 25 person to hold a licence under division 3 if the director 26 were an applicant for a licence. 27 (4) The public trustee as a corporation sole is taken to be eligible 28 to obtain a licence. 29 Page 23

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 25] (5) The chief executive of a department is taken to be eligible to 1 obtain a licence. 2 Division 5 Issue of licences 3 25 Chief executive may issue or refuse to issue licence 4 (1) The chief executive may issue or refuse to issue a licence to 5 an applicant. 6 (2) The chief executive may issue a licence to an applicant only if 7 the chief executive is satisfied-- 8 (a) the applicant is a suitable person to hold a licence and-- 9 (i) if the applicant intends carrying on business in 10 partnership or in conjunction with others--each 11 member of the partnership or each person with 12 whom the applicant intends carrying on business in 13 conjunction is a suitable person to hold a licence; 14 and 15 (ii) if the applicant is a corporation--each executive 16 officer of the corporation is a suitable person to 17 hold a licence; and 18 (b) the applicant is eligible to obtain a licence; and 19 (c) the application is properly made. 20 (3) For subsection (2)(c), an application is properly made only if 21 it complies with section 11 and is accompanied by the things 22 mentioned in that section. 23 (4) If the chief executive decides to refuse to issue the licence, the 24 chief executive must give the applicant an information notice 25 about the decision within 14 days after the decision is made. 26 (5) If the applicant's application for a licence is refused, the 27 applicant may not make another application for a licence-- 28 (a) for 3 months after the day the chief executive gives the 29 applicant the information notice under subsection (4); or 30 Page 24

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 26] (b) if the applicant applies to QCAT to review the chief 1 executive's decision and the decision is confirmed, for 3 2 months after the day the decision is confirmed. 3 (6) Subsection (5) does not apply if-- 4 (a) the applicant is a corporation; and 5 (b) the applicant satisfies the chief executive that, because 6 of a genuine sale-- 7 (i) no person who was a shareholder of, or held a 8 beneficial interest in, the corporation when the 9 refused application was made is a shareholder of, 10 or holds a beneficial interest in, the applicant 11 corporation; and 12 (ii) no person who was in a position to control or 13 influence the affairs of the corporation when the 14 refused application was made is in a position to 15 control or influence the affairs of the applicant 16 corporation. 17 26 Licence--public trustee 18 (1) The chief executive may issue a licence to the public trustee in 19 the public trustee's capacity as a corporation sole in the name 20 `The Public Trustee of Queensland'. 21 (2) A licence issued to the public trustee authorises an officer or 22 employee of the public trustee to perform any activity 23 authorised by the public trustee that the public trustee may 24 perform under the licence. 25 (3) To remove any doubt, it is declared that an officer or 26 employee performing an activity authorised by the public 27 trustee is not required to be licensed or registered under this 28 Act to perform the activity. 29 Page 25

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 27] 27 Licence--chief executive of department 1 (1) The chief executive may issue a licence to the chief executive 2 of a department in the name `The Chief Executive of the 3 (name of department)'. 4 (2) The licence is taken to be issued to the chief executive for the 5 time being of the department. 6 (3) The chief executive of a department, as licensee, is taken to 7 represent the State. 8 (4) A licence issued to the chief executive authorises an officer or 9 employee of the department of which the chief executive is 10 chief executive to perform any activity authorised by the chief 11 executive that the chief executive may perform under the 12 licence. 13 (5) To remove any doubt, it is declared that an officer or 14 employee performing an activity authorised by the chief 15 executive is not required to be licensed or registered under this 16 Act to perform the activity. 17 28 Licence--conditions 18 (1) The chief executive may issue a licence on the conditions the 19 chief executive considers necessary or desirable for the proper 20 performance of the activities authorised by the licence. 21 (2) Without limiting subsection (1), a condition may-- 22 (a) limit or prohibit the performance of an activity 23 authorised under this Act or the Administration Act; or 24 (b) require a licensee to hold insurance of a kind and in an 25 amount prescribed under a regulation. 26 (3) If the chief executive decides to issue a licence on condition, 27 the chief executive must give the applicant an information 28 notice about the decision within 14 days after the decision is 29 made. 30 Page 26

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 29] Division 6 Restrictions on performing 1 activities under licences 2 29 Restriction--corporations 3 (1) A corporation that holds a licence may perform an activity 4 under its licence at a place only if the activity may be 5 performed by-- 6 (a) a licensed person in charge of the corporation's business 7 at the place; or 8 (b) a liquidator or controller appointed under the 9 Corporations Act of property of the corporation; or 10 (c) an administrator of a corporation appointed under the 11 Corporations Act; or 12 (d) an administrator of a deed of company arrangement for 13 a corporation appointed under the Corporations Act; or 14 (e) a receiver, appointed under the Administration Act, for 15 property of the corporation. 16 (2) If the corporation performs an activity it is not authorised to 17 perform, it is taken to be a person who acts as a licensee 18 without a licence for the performance of the activity. 19 30 Restriction--individuals 20 (1) An individual who is an employed licensee may perform an 21 activity authorised under the individual's licence only if the 22 activity may also be performed by the individual's employer 23 under the employer's licence. 24 Example-- 25 E is a licensed employee of P, a licensed commercial agent. E's licence 26 is not subject to a condition. However, P's licence is subject to the 27 condition that P only engage in the collection of debts. Because of the 28 condition, E is only authorised to engage in the collection of debts under 29 E's licence during E's employment with P and while P is subject to the 30 condition. 31 Page 27

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 31] (2) If the employed licensee performs an activity the employed 1 licensee is not authorised to perform because of subsection 2 (1), the employed licensee is taken to be a person who acts as 3 a licensee without a licence for the performance of the 4 activity. 5 31 Restriction--conditions 6 (1) This section applies to a licensee who performs an activity 7 under the licensee's licence that the licensee is not authorised 8 to perform because of a condition on the licensee's licence. 9 (2) The licensee is taken to be a person who acts as a licensee 10 without a licence for the performance of the activity. 11 Note-- 12 For the consequences of a licensee performing an activity that the 13 licensee is not authorised to perform because of a condition on the 14 licensee's licence see sections 64 and 72. 15 Division 7 Renewal and restoration of licences 16 Subdivision 1 Renewal 17 32 Application for renewal 18 (1) A licensee may only apply for renewal of the licensee's 19 licence before the licence expires. 20 (2) The application must-- 21 (a) be made to the chief executive in the approved form; and 22 (b) state the term of the licence being applied for; and 23 (c) state the names and addresses of the licensee's business 24 associates; and 25 (d) be accompanied by-- 26 (i) the application fee prescribed under a regulation; 27 and 28 Page 28

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 33] (ii) the licence renewal fee prescribed under a 1 regulation; and 2 (iii) if the licensee is required as a condition of the 3 licensee's licence to hold insurance, proof of the 4 currency of the insurance; and 5 (iv) if, before or when the application is made, a 6 criminal history costs requirement is made of the 7 licensee--the amount of the costs required to be 8 paid. 9 (3) The application must also be accompanied by-- 10 (a) an audit report for all trust accounts kept by the licensee 11 during the relevant audit period; or 12 (b) a statutory declaration that the licensee did not operate a 13 trust account during the relevant audit period. 14 (4) If requested by the chief executive, the application must, for a 15 licensee who is an individual, also be accompanied by 2 16 recent colour photographs of the licensee that are-- 17 (a) of a size prescribed under a regulation; and 18 (b) certified as photographs of the licensee in the way 19 prescribed under a regulation. 20 (5) The licensee must also satisfy the chief executive that the 21 licensee has actively carried out the activities authorised 22 under the licence for a period, and within the period, 23 prescribed under a regulation. 24 (6) In this section-- 25 relevant audit period, for a licensee's licence, means the audit 26 period ending immediately before the licence's expiry date. 27 33 Chief executive may renew or refuse to renew licence 28 (1) The chief executive must consider the renewal application and 29 may renew or refuse to renew the licence. 30 (2) The chief executive may renew the licence only if the chief 31 executive is satisfied-- 32 Page 29

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 34] (a) the licensee is a suitable person to hold a licence and-- 1 (i) if the licensee carries on business in partnership or 2 in conjunction with others--each member of the 3 partnership, or each person with whom the licensee 4 carries on business in conjunction, is a suitable 5 person to hold a licence; and 6 (ii) if the licensee is a corporation--each executive 7 officer of the corporation is a suitable person to 8 hold a licence; and 9 (b) the application is properly made; and 10 (c) the licensee has, as a principal licensee, a licensee in 11 charge of a corporation's business or an employed 12 licensee, actively carried out the activities authorised 13 under the licence for a period, and within the period, 14 prescribed under a regulation; and 15 (d) the licensee meets the eligibility requirements, other 16 than eligibility requirements of an educational nature, 17 for the licence. 18 (3) For subsection (2)(b), an application is properly made only if 19 it complies with section 32 and is accompanied by the things 20 mentioned in that section. 21 (4) If the chief executive decides to refuse the application, the 22 chief executive must give the applicant an information notice 23 about the decision within 14 days after the decision is made. 24 34 Licence taken to be in force while application for renewal 25 is considered 26 If an application is made under section 32, the licensee's 27 licence is taken to continue in force from the day that it 28 would, apart from this section, have expired until the 29 licensee's application for renewal is-- 30 (a) decided under section 33; or 31 (b) withdrawn by the licensee; or 32 (c) taken to have been withdrawn under section 23(3). 33 Page 30

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 35] Subdivision 2 Restoration 1 35 Application for restoration 2 (1) If a licensee's licence expires, the person (former licensee) 3 may apply for restoration of the licence. 4 (2) The application must-- 5 (a) be made within 3 months after the expiry; and 6 (b) be made to the chief executive in the approved form; and 7 (c) state the term of the licence being applied for; and 8 (d) state the names and addresses of the former licensee's 9 business associates; and 10 (e) be accompanied by-- 11 (i) the application fee prescribed under a regulation; 12 and 13 (ii) the licence renewal fee prescribed under a 14 regulation; and 15 (iii) the licence restoration fee prescribed under a 16 regulation; and 17 (iv) if the former licensee was required as a condition 18 of the former licensee's licence to hold insurance, 19 proof of the currency of the insurance; and 20 (v) if, before or when the application is made, a 21 criminal history costs requirement is made of the 22 former licensee--the amount of the costs required 23 to be paid. 24 (3) The application must also be accompanied by-- 25 (a) an audit report about all trust accounts maintained by the 26 former licensee during the relevant audit period; or 27 (b) a statutory declaration that the former licensee did not 28 operate a trust account during the relevant audit period. 29 Page 31

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 36] (4) If requested by the chief executive, the application must, for a 1 former licensee who is an individual, also be accompanied by 2 2 recent colour photographs of the former licensee that are-- 3 (a) of a size prescribed under a regulation; and 4 (b) certified as photographs of the former licensee in the 5 way prescribed under a regulation. 6 (5) The former licensee must also satisfy the chief executive that 7 the former licensee has, as a licensee, actively carried out the 8 activities authorised under the licence for a period, and within 9 the period, prescribed under a regulation. 10 (6) In this section-- 11 relevant audit period, for a former licensee's licence, means 12 the audit period ending immediately before the former 13 licence's expiry date. 14 36 Chief executive may restore or refuse to restore licence 15 (1) The chief executive must consider the restoration application 16 and may restore or refuse to restore the licence. 17 (2) The chief executive may restore the licence only if the chief 18 executive is satisfied-- 19 (a) the licensee is a suitable person to hold a licence and-- 20 (i) if the licensee carries on, or intends to carry on, 21 business in partnership or in conjunction with 22 others--each member of the partnership or each 23 person with whom the licensee carries on, or 24 intends to carry on, business in conjunction is a 25 suitable person to hold a licence; and 26 (ii) if the licensee is a corporation--each executive 27 officer of the corporation is a suitable person to 28 hold a licence; and 29 (b) the application is properly made; and 30 (c) the licensee has, as a principal licensee or employed 31 licensee, actively carried out the activities authorised 32 Page 32

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 37] under the licence for a period, and within the period, 1 prescribed under a regulation; and 2 (d) the licensee meets the eligibility requirements, other 3 than eligibility requirements of an educational nature, 4 for the licence. 5 (3) For subsection (2)(b), an application is properly made only if 6 it complies with section 35 and is accompanied by the things 7 mentioned in that section. 8 (4) If the chief executive decides to refuse the application, the 9 chief executive must give the licensee an information notice 10 about the decision within 14 days after the decision is made. 11 (5) If the chief executive restores the licence-- 12 (a) the licence is taken to have been renewed on the day it 13 would, apart from section 37, have expired (the initial 14 expiry date); and 15 (b) to remove any doubt, a thing done during the period 16 starting on the initial expiry date and ending on the day 17 the licence is restored under this section is taken to have 18 been as validly done as it would have been if the licence 19 had been renewed immediately before the initial expiry 20 date. 21 37 Licence taken to be in force while application for 22 restoration is considered 23 If an application is made under section 35, the licensee's 24 licence is taken to continue in force from the day that it 25 would, apart from this section, have expired until the 26 licensee's application for restoration is-- 27 (a) decided under section 36; or 28 (b) withdrawn by the licensee; or 29 (c) taken to have been withdrawn under section 23(3). 30 Page 33

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 38] Division 8 Dealings with licences 1 Subdivision 1 Transfer of licence 2 38 Transfer of licence prohibited 3 A licence may not be transferred. 4 Subdivision 2 Substitute licences 5 39 Appointment of substitute licensee--principal 6 licensee--individual 7 (1) A principal licensee may appoint an adult as the licensee's 8 substitute licensee for a period of not more than 30 days only 9 if-- 10 (a) the licensee will be absent from the licensee's registered 11 office for the period; and 12 (b) the adult consents to the appointment; and 13 (c) if the licensee is required as a condition of the licensee's 14 licence to hold insurance, the adult is covered by the 15 insurance or holds insurance that complies with the 16 requirements of the condition. 17 (2) The principal licensee must ensure-- 18 (a) an appointment under subsection (1) and the substitute 19 licensee's consent to the appointment are in writing and 20 state the period of appointment; and 21 (b) the appointment, consent and evidence of any insurance 22 the substitute licensee is required to have are-- 23 (i) kept at the licensee's registered office; and 24 (ii) made available for immediate inspection by an 25 inspector who asks to see them. 26 Maximum penalty--100 penalty units. 27 Page 34

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 39] (3) A principal licensee who will be absent from the licensee's 1 registered office for a period of more than 30 days must apply 2 to the chief executive in the approved form for the 3 appointment or the extension of the appointment of an adult 4 (nominated person) as the licensee's substitute licensee. 5 Maximum penalty--200 penalty units. 6 (4) If the principal licensee is a person for whom an administrator 7 has been appointed under the Guardianship and 8 Administration Act 2000 or is deceased, the licensee's 9 representative may make the application under subsection (3). 10 (5) The application must be accompanied by-- 11 (a) the nominated person's signed consent to the 12 appointment; and 13 (b) enough information about the nominated person to 14 enable the chief executive to decide whether the 15 person-- 16 (i) is a suitable person to hold a licence; and 17 (ii) is sufficiently qualified to perform the licensee's 18 activities during the period; and 19 (iii) if the licensee is required as a condition of the 20 licensee's licence to hold insurance, is covered by 21 the insurance or holds insurance that complies with 22 the requirements of the condition; and 23 (c) the application fee prescribed under a regulation; and 24 (d) if, before or when the application is made, a criminal 25 history costs requirement is made of the principal 26 licensee--the amount of the costs required to be paid. 27 (6) In this section-- 28 principal licensee means a principal licensee who is an 29 individual. 30 Page 35

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 40] representative, of a principal licensee, means-- 1 (a) for a licensee for whom an administrator has been 2 appointed under the Guardianship and Administration 3 Act 2000--the licensee's administrator; or 4 (b) for a deceased licensee--the licensee's personal 5 representative. 6 40 Appointment of substitute licensee--employed licensee 7 in charge of a licensee's business at a place 8 (1) This section applies if an employed licensee who is in charge 9 of a licensee's business at a place will be absent from the 10 place for any reason, other than the employed licensee's 11 resignation or termination of employment. 12 (2) If the employed licensee will be absent from the place for a 13 period of not more than 30 days, the principal licensee who 14 employs the employed licensee may appoint an adult as the 15 employed licensee's substitute licensee for the period if the 16 adult consents to the appointment. 17 (3) The principal licensee must ensure an appointment under 18 subsection (2) and the person's consent to the appointment 19 are-- 20 (a) in writing and state the period of appointment; and 21 (b) kept at the licensee's registered office; and 22 (c) made available for immediate inspection by an inspector 23 who asks to see them. 24 Maximum penalty--100 penalty units. 25 (4) If the employed licensee will be absent from the place for a 26 period of more than 30 days, the principal licensee who 27 employs the employed licensee must apply to the chief 28 executive in the approved form for the appointment or the 29 extension of the appointment of a person (nominated person) 30 as the licensee's substitute licensee. 31 Maximum penalty--200 penalty units. 32 Page 36

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 41] (5) The application must be accompanied by-- 1 (a) the nominated person's signed consent to the 2 appointment; and 3 (b) enough information about the nominated person to 4 enable the chief executive to decide whether the person 5 is-- 6 (i) a suitable person to hold a licence; and 7 (ii) sufficiently qualified to perform the employed 8 licensee's activities during the period; and 9 (c) the application fee prescribed under a regulation; and 10 (d) if, before or when the application is made, a criminal 11 history costs requirement is made of the principal 12 licensee--the amount of the costs required to be paid. 13 (6) In this section-- 14 principal licensee includes-- 15 (a) for a licensee for whom an administrator has been 16 appointed under the Guardianship and Administration 17 Act 2000--the licensee's administrator; and 18 (b) for a deceased licensee--the licensee's personal 19 representative. 20 41 Chief executive may appoint or refuse to appoint 21 substitute licensee 22 (1) The chief executive may appoint or refuse to appoint a 23 nominated person mentioned in section 39(3) or 40(4) as a 24 licensee's substitute licensee. 25 (2) The chief executive may appoint the nominated person only if 26 the chief executive is satisfied that the person-- 27 (a) is, under division 3, a suitable person to hold a licence; 28 and 29 (b) is sufficiently qualified to perform the licensee's 30 activities during the period of the licensee's absence; 31 and 32 Page 37

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 42] (c) if the licensee is required as a condition of the licensee's 1 licence to hold insurance, is covered by the insurance or 2 holds insurance that complies with the requirements of 3 the condition. 4 (3) An appointment under this section may be made subject to the 5 conditions the chief executive considers appropriate. 6 (4) The chief executive must give written notice of the 7 appointment to the licensee and the substitute licensee. 8 (5) If the chief executive decides to refuse the application or to 9 impose conditions on the appointment, the chief executive 10 must give the licensee an information notice about the 11 decision within 14 days after the decision is made. 12 42 Substitute licensee 13 (1) On appointment, a substitute licensee-- 14 (a) must act as substitute for the licensee for whom the 15 substitute is appointed; and 16 (b) is taken to be the licensee during the period of 17 appointment. 18 (2) A licensee for whom a substitute has been appointed must not 19 act under the authority of the licensee's licence while the 20 appointment of the substitute licensee continues. 21 Maximum penalty--200 penalty units. 22 (3) The appointment of the substitute licensee ends if-- 23 (a) the period of appointment ends; or 24 (b) the principal licensee gives written notice to end the 25 appointment from a date stated in the notice-- 26 (i) for a substitute licensee appointed under section 27 39(1) or 40(2)--to the substitute licensee; or 28 (ii) for a substitute licensee appointed under section 29 41--to the chief executive and the substitute 30 licensee; or 31 Page 38

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 43] (c) the substitute licensee gives written notice to end the 1 appointment from a date stated in the notice-- 2 (i) for a substitute licensee appointed under section 3 39(1) or 40(2)--to the principal licensee making 4 the appointment; or 5 (ii) for a substitute licensee appointed under section 6 41--to the chief executive and the principal 7 licensee who applied for the appointment; or 8 (d) the chief executive revokes the substitute licensee's 9 appointment; or 10 (e) the licensee's licence is suspended or cancelled; or 11 (f) if the licensee is a principal licensee, the licensee stops 12 carrying on business as a licensee. 13 43 Limitation on period of substitution 14 (1) A principal licensee may not appoint a substitute licensee for 15 himself or herself for more than 12 weeks in any period of 12 16 months. 17 (2) A principal licensee may not appoint a substitute licensee for 18 an employed licensee for more than 12 weeks in any period of 19 12 months. 20 (3) The chief executive may not appoint a substitute licensee for 21 any licensee for more than 26 weeks in any period of 12 22 months. 23 Subdivision 3 General 24 44 Amendment of licence conditions 25 (1) The chief executive may amend the conditions of a licence-- 26 (a) on the licensee's application; or 27 (b) on the order of QCAT after a disciplinary hearing; or 28 (c) on the chief executive's own initiative. 29 Page 39

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 44] Note-- 1 QCAT may deal with the conditions of a person's licence under section 2 122. 3 (2) An application under subsection (1)(a) must be made in the 4 approved form and be accompanied by the application fee 5 prescribed under a regulation. 6 (3) Before making an amendment under subsection (1)(a), the 7 chief executive must be satisfied the licensee meets the 8 eligibility requirements the chief executive considers relevant 9 to the amendment of the condition. 10 (4) Before making an amendment under subsection (1)(c), the 11 chief executive must-- 12 (a) give written notice to the licensee-- 13 (i) of the particulars of the proposed amendment; and 14 (ii) that the licensee may make written submissions to 15 the chief executive about the proposed amendment 16 before a stated day, not later than 14 days after the 17 notice is given to the licensee; and 18 (b) have regard to submissions made to the chief executive 19 by the licensee before the stated day. 20 (5) Subsection (4) does not apply if the chief executive decides 21 that the amendment must be made urgently-- 22 (a) to avoid potential claims against the fund; or 23 (b) to ensure compliance with this Act or the 24 Administration Act. 25 (6) If the chief executive decides to amend the conditions of a 26 licence under subsection (1)(c), the chief executive must give 27 the licensee an information notice about the decision within 28 14 days after the decision is made. 29 (7) The amendment takes effect-- 30 (a) on the day the written notice of the amendment is given 31 to the licensee; or 32 (b) if a later day is stated in the notice, on the stated day. 33 Page 40

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 45] (8) If the chief executive decides to refuse to make an amendment 1 requested under subsection (1)(a), the chief executive must 2 give the applicant an information notice about the decision 3 within 14 days after the decision is made. 4 45 Return of licence for amendment of conditions or when 5 suspended or cancelled 6 (1) If the chief executive amends the conditions of a licence under 7 section 44, the chief executive may require the licensee to 8 produce the licence for amendment within a stated period of 9 not less than 14 days. 10 (2) The licensee must comply with a requirement under 11 subsection (1), unless the person has a reasonable excuse. 12 Maximum penalty--100 penalty units. 13 (3) A person whose licence has been suspended or cancelled must 14 return the licence to the chief executive within 14 days after 15 the suspension or cancellation, unless the person has a 16 reasonable excuse. 17 Maximum penalty--100 penalty units. 18 46 Surrender of licence 19 (1) A licensee may surrender the licensee's licence by giving 20 written notice to the chief executive and returning the licence. 21 (2) A licence surrendered under this section stops having effect 22 on the day it is surrendered. 23 47 Licence may be deactivated 24 (1) A licensee may ask the chief executive to deactivate the 25 licensee's licence. 26 (2) A request under subsection (1) must be made in the approved 27 form and be accompanied by the licensee's licence and the fee 28 prescribed under a regulation. 29 Page 41

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 48] (3) The licence is taken to be deactivated when the request, the 1 licence and the prescribed fee are received by the chief 2 executive under subsection (2). 3 (4) A licence that is deactivated does not authorise the licensee to 4 perform an activity under the authority of the licence. 5 (5) The deactivation of a licence under this section does not-- 6 (a) affect the term of the licence; or 7 (b) entitle the licensee to a refund of fees relating to the 8 licence for the balance of the licence's term. 9 (6) The holder of a deactivated licence may apply to have the 10 licence renewed under section 32 or restored under section 35 11 as a deactivated licence at a reduced fee prescribed under a 12 regulation. 13 (7) A licensee may ask the chief executive to reactivate the 14 licence. 15 (8) However, if the licence has been deactivated for 5 years or 16 more, the licence may be reactivated only if the licensee 17 satisfies any educational or other requirements prescribed 18 under a regulation for the issue of the licence. 19 (9) A request under subsection (7) must be made in the approved 20 form and be accompanied by the fee prescribed under a 21 regulation. 22 Division 9 Immediate suspension and 23 cancellation of licences 24 48 Immediate suspension 25 (1) This section applies if-- 26 (a) the chief executive reasonably considers that a licensee's 27 licence was obtained, or renewed or restored, because of 28 materially incorrect or misleading information; or 29 Page 42

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 48] (b) the chief executive reasonably considers that an 1 irregularity or deficiency exists in a licensee's trust 2 account; or 3 (c) the chief executive is satisfied a licensee who has been 4 convicted of failing to file an audit report as required 5 under the Administration Act, section 36, continues, 6 after the end of any appeal against the conviction, to fail 7 to file the audit report; or 8 (d) a receiver is appointed under the Administration Act, 9 section 45, over property-- 10 (i) held by a licensee; or 11 (ii) held by another person for a licensee; or 12 (iii) recoverable by a licensee; or 13 (e) the chief executive reasonably considers that a 14 licensee-- 15 (i) has contravened or is contravening this Act or the 16 Administration Act; or 17 (ii) is likely or proposing to engage in conduct that 18 would contravene this Act or the Administration 19 Act. 20 (2) The chief executive may, whether or not disciplinary 21 proceedings have been started under this Act-- 22 (a) suspend the licensee's licence; or 23 (b) without limiting paragraph (a), for subsection (1)(b), 24 suspend a licence held by an employee of the licensee if 25 the chief executive considers, on reasonable grounds, 26 the employee is responsible in any way for the 27 irregularity or deficiency in the licensee's trust account. 28 (3) If the chief executive suspends a licence for a reason 29 mentioned in subsection (1)(a), (b), (d) or (e), the licence may 30 be suspended for the period, of not more than 28 days, and on 31 the conditions, the chief executive decides. 32 Page 43

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 49] (4) If the chief executive suspends the licence for the reason 1 mentioned in subsection (1)(c), the licence is suspended until 2 whichever of the following happens first-- 3 (a) the licensee files the required audit report; 4 (b) an application to QCAT for the cancellation of the 5 licence is heard and decided. 6 (5) The chief executive must give the licensee an information 7 notice about the suspension within 14 days after suspending 8 the licensee's licence. 9 (6) The licensee must return the licence to the chief executive 10 within 14 days after the licensee receives the notice, unless 11 the person has a reasonable excuse. 12 Maximum penalty for subsection (6)--100 penalty units. 13 49 Immediate cancellation 14 (1) A licensee's licence is cancelled on the happening of any of 15 the following events-- 16 (a) the licensee is convicted of a serious offence; 17 (b) if the licensee is an individual, the licensee is an 18 insolvent under administration; 19 (c) if the licensee is a corporation, the licensee has been 20 wound up or struck off under the Corporations Act. 21 (2) The licensee must return the licence to the chief executive 22 within 14 days after the happening of an event mentioned in 23 subsection (1), unless the licensee has a reasonable excuse. 24 Maximum penalty--100 penalty units. 25 Division 10 General provisions about licences 26 50 Form of licence 27 (1) A licence must be in the approved form. 28 Page 44

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 51] (2) However, the chief executive may approve-- 1 (a) a form of licence for office display purposes; and 2 Example-- 3 a licence in the form of a certificate that may be framed and 4 displayed in an office 5 (b) a form of licence for personal identification purposes. 6 Example-- 7 a licence in the form of a small photo identification card suitable 8 for carrying easily on one's person 9 (3) The licence must contain the following particulars-- 10 (a) the name of the licensee; 11 (b) the date of issue of the licence; 12 (c) the expiry date of the licence; 13 (d) for a personal identification licence, a recent photograph 14 of the licensee; 15 (e) other particulars that may be prescribed under a 16 regulation. 17 51 Term of licence 18 A licence may be issued for a 1 year or 3 year term. 19 52 Replacement licences 20 (1) A licensee may apply to the chief executive for the 21 replacement of a lost, stolen, destroyed or damaged licence. 22 (2) The application must be made in the approved form and be 23 accompanied by the fee prescribed under a regulation. 24 (3) The chief executive must grant the application if the chief 25 executive is satisfied the licence has been lost, stolen, 26 destroyed or damaged in a way to require its replacement. 27 Page 45

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 53] (4) If the chief executive grants the application, the chief 1 executive must issue another licence to the applicant to 2 replace the lost, stolen, destroyed or damaged licence. 3 53 Register of licences 4 (1) The chief executive must keep a register of licences and 5 applications for licences (licence register). 6 (2) The licence register must contain the following particulars-- 7 (a) for each applicant for a licence-- 8 (i) the applicant's name; and 9 (ii) if the applicant intends to carry on business under 10 the licence, the place where the applicant intends 11 to carry on business; and 12 (iii) the date of the application; and 13 (iv) the application number; 14 (b) for each licensee-- 15 (i) the licensee's name; and 16 (ii) the licensee's registered office; and 17 (iii) the dates of issue and expiry of the licensee's 18 current licence; and 19 (iv) any conditions imposed on the licence; and 20 (v) if the licensee is a corporation, the name of the 21 individual in charge of the licensee's business at 22 the licensee's registered office; and 23 (vi) if the licensee is a director of a licensed 24 corporation, the name of the licensed corporation; 25 and 26 (vii) if the licensee is an employee of another licensee, 27 the name of the licensee's employer; and 28 (viii) the licensee's licence number; and 29 Page 46

 


 

Commercial Agents Bill 2010 Part 2 Licensing [s 54] (ix) particulars of any surrender, suspension or 1 cancellation of the licensee's licence. 2 (3) A person may, on payment of the fee prescribed under a 3 regulation, inspect, or get a copy of details in, the part of the 4 register containing the particulars mentioned in subsection 5 (2)-- 6 (a) at a place or places decided by the chief executive; or 7 (b) by using a computer. 8 (4) A person may pay the fee, in advance or in arrears, under an 9 arrangement approved by the chief executive. 10 (5) The register may be kept in the way the chief executive 11 considers appropriate. 12 (6) In this section-- 13 contain includes record and store. 14 54 Licensees to notify chief executive of changes in 15 circumstances 16 (1) A licensee must give written notice to the chief executive of a 17 prescribed change in the licensee's circumstances within 14 18 days after the change. 19 Maximum penalty--100 penalty units. 20 (2) In this section-- 21 prescribed change means a change prescribed under a 22 regulation. 23 Page 47

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 55] Part 3 Authorisation and 1 responsibilities 2 Division 1 Commercial agents' authorisation 3 and responsibilities 4 Subdivision 1 Commercial agent licence 5 55 What a commercial agent licence authorises 6 (1) A commercial agent licence authorises the holder of the 7 licence (commercial agent) to perform the following 8 activities as an agent for others for reward-- 9 (a) to find, or repossess, for a person any goods or chattels 10 that the person is entitled to repossess under an 11 agreement; 12 (b) to collect, or request payment of, debts; 13 (c) to serve any writ, claim, application, summons or other 14 process. 15 (2) A commercial agent may perform the activities in the carrying 16 on of a business, either alone or with others, or as an 17 employee of someone else. 18 Subdivision 2 Responsibilities of persons in 19 charge of a licensee's business for 20 commercial subagents 21 56 Responsibility for acts and omissions of commercial 22 subagent 23 (1) A commercial agent who is a principal licensee must take 24 reasonable steps to ensure each commercial subagent 25 Page 48

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 57] employed by the agent is properly supervised and complies 1 with this Act. 2 (2) A commercial agent who is an employed licensee in charge of 3 a commercial agent's business at a place must take reasonable 4 steps to ensure each commercial subagent employed at the 5 place is properly supervised and complies with this Act. 6 (3) A commercial agent who fails to comply with subsection (1) 7 or (2) is liable to disciplinary action under part 7, division 3. 8 Division 2 Conduct provisions 9 Subdivision 1 Carrying on business 10 57 Carrying on of business under commercial agent licence 11 An individual who carries on the business of a commercial 12 agent with others is not required to hold a commercial agent 13 licence if-- 14 (a) at least 1 of the persons with whom the individual 15 carries on business is a commercial agent; and 16 (b) the individual does not perform the activities of a 17 commercial agent; and 18 (c) the individual is a suitable person to hold a licence. 19 58 Licensee to be in charge of commercial agent's business 20 at a place 21 (1) A commercial agent who is an individual and a principal 22 licensee must-- 23 (a) be in charge of the agent's business at the agent's 24 registered office; and 25 (b) if the commercial agent has more than 1 place of 26 business, ensure that at each other place of business a 27 Page 49

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 59] commercial agent who is an individual is in charge of 1 the agent's business at the place. 2 Maximum penalty--200 penalty units. 3 (2) A commercial agent that is a corporation and a principal 4 licensee (corporate agent) must ensure that-- 5 (a) the individual in charge of the corporate agent's business 6 at its registered office is a commercial agent; and 7 (b) if the corporate agent has more than 1 place of business, 8 at each other place of business an individual who is a 9 commercial agent is in charge of the corporate agent's 10 business at the place. 11 Maximum penalty-- 12 (a) for an individual guilty under chapter 2 of the Criminal 13 Code of an offence or for section 146--200 penalty 14 units; or 15 (b) for a corporation--1000 penalty units. 16 (3) An individual must not be in charge of a commercial agent's 17 business at more than 1 place. 18 Maximum penalty--200 penalty units. 19 Subdivision 2 Appointment 20 59 Application of sdiv 2 21 This subdivision applies to a commercial agent only in 22 relation to performing the following activities as an agent for 23 others for reward-- 24 (a) finding, or repossessing, for a person any goods or 25 chattels that the person is entitled to repossess under an 26 agreement; 27 (b) collecting, or requesting payment of, debts. 28 Page 50

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 60] 60 Appointment of commercial agent 1 (1) A commercial agent must not act as a commercial agent for a 2 person (client) to perform an activity (service) for the client 3 unless-- 4 (a) the client appoints the agent in writing under this 5 section; or 6 (b) a previous appointment has been assigned to the agent 7 under the terms of the appointment or under section 62 8 and the appointment is in force. 9 Maximum penalty--200 penalty units. 10 (2) The appointment may be for the performance of-- 11 (a) a particular service (single appointment); or 12 (b) a number of services over a period (continuing 13 appointment). 14 (3) The appointment must-- 15 (a) state the service to be performed by the commercial 16 agent and how it is to be performed; and 17 (b) state-- 18 (i) the fees, charges and any commission payable for 19 the services; and 20 (ii) the expenses, including travelling expenses, the 21 commercial agent is authorised to incur in 22 connection with-- 23 (A) for a single appointment--the performance 24 of the service; or 25 (B) for a continuing appointment--the 26 performance of each service or category of 27 service; and 28 (iii) the source and the estimated amount or value of 29 any rebate, discount, commission or benefit that 30 the commercial agent may receive for any 31 expenses the commercial agent is authorised to 32 Page 51

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 61] incur in connection with the performance of the 1 service; and 2 (iv) any condition, limitation or restriction on the 3 performance of the service; and 4 (c) state when the fees, charges and any commission for the 5 service become payable. 6 (4) A continuing appointment must state-- 7 (a) the date the appointment ends; and 8 (b) the appointment may be revoked on the giving of 90 9 days notice, or the lesser period (of at least 30 days) 10 agreed by the parties. 11 (5) The notice revoking a continuing appointment must be by 12 signed writing given to the other party. 13 (6) The appointment must be signed and dated by the client and 14 the commercial agent or someone authorised or apparently 15 authorised to sign for the agent. 16 (7) The commercial agent must give a copy of the signed 17 appointment to the client. 18 Maximum penalty for subsection (7)--200 penalty units. 19 61 Form of appointment 20 (1) The appointment must be in writing and contain the 21 particulars prescribed under a regulation. 22 (2) An appointment that does not comply with subsection (1) is 23 ineffective from the time it is made. 24 62 Proposal for assignment of appointments 25 (1) This section applies if a commercial agent who holds 26 appointments from clients to perform services for the clients 27 under section 60 proposes to assign the appointments to 28 another commercial agent (proposed assignee) without 29 changing the terms of the appointment. 30 Page 52

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 63] (2) However, this section does not apply to the assignment of an 1 appointment if-- 2 (a) the terms of the appointment authorise the assignment 3 of the appointment; and 4 (b) the assignment is made in compliance with the terms of 5 the appointment. 6 (3) At least 14 days before the commercial agent assigns the 7 appointments, the commercial agent must give each client 8 written notice of the proposed assignment. 9 (4) The notice must state the following-- 10 (a) the proposed assignee's name; 11 (b) that the appointments are to be assigned without 12 changing the terms of the appointment; 13 (c) the client may agree or refuse to agree to the proposed 14 assignment; 15 (d) when the proposed assignment is to take effect. 16 (5) If the client agrees to the assignment and the commercial 17 agent assigns the appointment under this section, the 18 appointment is taken, for section 60, to be an appointment by 19 the client of the proposed assignee and to continue to have 20 effect according to its terms. 21 Subdivision 3 Process serving 22 63 Engagement of commercial agent for process serving 23 A commercial agent must not act as a commercial agent for a 24 person (client) in relation to serving a writ, claim, application, 25 summons or other process (service) for the client unless the 26 client has instructed the agent in writing about the service. 27 Maximum penalty--200 penalty units. 28 Page 53

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 64] Subdivision 4 Recovery of expenses and costs 1 64 Restriction on remedy for reward or expense 2 (1) A person is not entitled to sue for, or recover or retain, a 3 reward or expense for the performance of an activity as a 4 commercial agent unless, at the time the activity was 5 performed, the person-- 6 (a) held a commercial agent licence; and 7 (b) was authorised under the person's licence to perform the 8 activity; and 9 (c) had been properly appointed or engaged under 10 subdivision 2 or 3 by the person to be charged with the 11 reward or expense. 12 (2) A person who sues for, or recovers or retains, a reward or 13 expense for the performance of an activity as a commercial 14 agent other than as provided by subsection (1) commits an 15 offence. 16 Maximum penalty for subsection (2)--200 penalty units. 17 65 Recovery of costs of commercial agent 18 (1) A person must not recover or attempt to recover from a debtor 19 the costs or expenses of a commercial agent for-- 20 (a) collecting or attempting to collect a debt owed by the 21 debtor; or 22 (b) repossessing or attempting to repossess goods or 23 chattels from the debtor. 24 Maximum penalty--200 penalty units. 25 (2) Subsection (1)(b) does not apply to prevent a person who 26 appoints a commercial agent to repossess goods or chattels 27 from a debtor from recovering the commercial agent's costs 28 and expenses if the person has a right under an agreement 29 with the debtor or otherwise to recover the costs or expenses. 30 Page 54

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 66] (3) Costs or expenses recovered in contravention of subsection 1 (1) may be recovered by the debtor as a debt. 2 (4) This section applies subject to the National Credit Code. 3 (5) In this section-- 4 costs do not include-- 5 (a) stamp duty; or 6 (b) legal costs fixed by, or payable under, rules of court or a 7 court order. 8 debtor includes a person from whom goods or chattels may be 9 lawfully repossessed. 10 National Credit Code means the National Credit Code in 11 schedule 1 of the National Consumer Credit Protection Act 12 2009 (Cwlth). 13 Subdivision 5 Code of conduct 14 66 Code of conduct 15 A regulation may prescribe a code of conduct about 16 commercial agency practice that may include the following-- 17 (a) setting conduct standards for commercial agents and 18 commercial subagents; 19 (b) establishing principles for fair trading; 20 (c) providing for a system of complaint resolution; 21 (d) providing that contraventions of some provisions of the 22 code are an offence. 23 67 Complaints about conduct and action chief executive 24 may take 25 (1) A person aggrieved by the conduct of a commercial agent or 26 commercial subagent may complain in writing to the chief 27 executive about the conduct. 28 Page 55

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 68] (2) The chief executive may investigate the complaint and, if 1 satisfied that the code of conduct has been breached, take the 2 action relating to the conduct allowed under this Act. 3 Note-- 4 Breach of the code of conduct may be an offence and is a ground for 5 starting disciplinary proceedings under section 117. 6 (3) The investigation may take place and action may be taken 7 against a person who was a commercial agent or commercial 8 subagent even though the person complained about is no 9 longer a commercial agent or commercial subagent. 10 Division 3 General 11 68 Registered office 12 A commercial agent's registered office is-- 13 (a) for a commercial agent who is a principal licensee-- 14 (i) the place the agent states in the agent's application 15 for a commercial agent licence as the agent's 16 principal place of business; or 17 (ii) another place notified to the chief executive by the 18 agent in the approved form as the agent's principal 19 place of business; and 20 (b) for a commercial agent who is an employed licensee-- 21 (i) the place the agent states in the agent's application 22 for a commercial agent licence as the agent's 23 business address; or 24 (ii) another place notified to the chief executive by the 25 agent in the approved form as the agent's business 26 address. 27 Page 56

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 69] 69 Commercial agent must notify chief executive of change 1 in place of business etc. 2 (1) A commercial agent who is a principal licensee must notify 3 the chief executive in the approved form of-- 4 (a) any change in the agent's principal place of business 5 within 14 days after the change; and 6 (b) the closure of any place where the agent carries on 7 business within 14 days after the closure; and 8 (c) the opening of any place where the agent carries on 9 business within 14 days after the opening. 10 Maximum penalty--200 penalty units. 11 (2) A commercial agent who is an employed licensee must notify 12 the chief executive in the approved form of any change in the 13 agent's business address within 14 days after the change. 14 Maximum penalty--200 penalty units. 15 70 Publication of licensee's name 16 A commercial agent must not publish in a newspaper or 17 elsewhere an advertisement for the agent's business without 18 stating in the advertisement the particulars prescribed under a 19 regulation. 20 Maximum penalty--100 penalty units. 21 71 Principal licensee must keep employment register 22 (1) A commercial agent who is a principal licensee must keep a 23 register (employment register) at each place where the 24 licensee carries on business. 25 Maximum penalty--200 penalty units. 26 (2) The commercial agent must enter, and keep entered, in the 27 employment register-- 28 (a) the name, and the other particulars prescribed under a 29 regulation, of each person (employee) who is employed 30 Page 57

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 72] as a commercial agent or commercial subagent at the 1 place; and 2 (b) if the employee is a commercial subagent, the activities 3 the subagent is authorised to perform for the agent 4 during the subagent's employment by the agent. 5 Maximum penalty--200 penalty units. 6 (3) The commercial agent must-- 7 (a) enter the particulars about each employee, and for each 8 commercial subagent, the activities the subagent is 9 authorised to perform, immediately after the employee 10 is employed at the place; and 11 (b) if there is a change in an employee's particulars or 12 activities, correct the entry in the way prescribed under a 13 regulation immediately after the change. 14 Maximum penalty--200 penalty units. 15 (4) The form of the register may be prescribed under a regulation. 16 Division 4 Offences 17 72 Acting as commercial agent 18 (1) A person must not, as an agent for someone else for reward, 19 perform an activity that may be done under the authority of a 20 commercial agent licence unless the person-- 21 (a) holds a commercial agent licence and the performance 22 of the activity is authorised under the person's licence; 23 or 24 (b) is otherwise permitted under this or another Act to 25 perform the activity. 26 Maximum penalty--200 penalty units or 2 years 27 imprisonment. 28 (2) A person must not act as a commercial agent unless-- 29 Page 58

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 73] (a) the person holds a commercial agent licence and the act 1 is done under the authority of the person's licence; or 2 (b) the act is otherwise permitted under this or another Act. 3 Maximum penalty--200 penalty units or 2 years 4 imprisonment. 5 (3) Without limiting the ways a person may act as a commercial 6 agent, a person acts as a commercial agent if the person-- 7 (a) performs an activity mentioned in section 55(1); or 8 (b) advertises, notifies or states that the person-- 9 (i) performs an activity mentioned in section 55(1); or 10 (ii) is willing to perform an activity mentioned in 11 section 55(1); or 12 (c) in any way holds out as being ready to perform an 13 activity mentioned in section 55(1). 14 (4) However-- 15 (a) a person does not act as a commercial agent only 16 because the person requests, by telephone, payment of a 17 debt for a commercial agent as an employee of the agent 18 if the request is made under the supervision of the agent; 19 and 20 (b) a lawyer does not act as a commercial agent only 21 because the lawyer collects debts in the lawyer's 22 practice if the lawyer complies with the requirements of 23 the Legal Profession Act 2007 relating to the debts. 24 (5) In this section-- 25 lawyer means an Australian lawyer who, under the Legal 26 Profession Act 2007, may engage in legal practice in the State. 27 73 Pretending to be commercial subagent 28 (1) A person must not act as a commercial subagent unless the 29 person holds a registration certificate as a commercial 30 subagent. 31 Page 59

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 74] Maximum penalty--200 penalty units. 1 (2) A person does not act as a commercial subagent only because 2 the persons requests, by telephone, payment of a debt for a 3 commercial agent as an employee of the agent if the request is 4 made under the supervision of the agent. 5 (3) In this section-- 6 act as a commercial subagent, for a person, includes hold out 7 that the person is a commercial subagent. 8 74 Commercial agent must not act for more than 1 party 9 (1) A commercial agent who is appointed to perform an activity 10 for a person (client) in relation to another person must not 11 accept appointment from the other person to perform an 12 activity while the agent continues to act for the client in 13 relation to the other person. 14 Maximum penalty--200 penalty units. 15 (2) Subsection (1) does not apply if the commercial agent acts for 16 more than 1 party in relation to a debt agreement under the 17 Bankruptcy Act 1966 (Cwlth), part IX. 18 75 Production of licence or registration certificate 19 (1) A commercial agent must, if asked by a person with whom the 20 agent is dealing, produce the agent's licence for inspection by 21 the person. 22 Maximum penalty--100 penalty units. 23 (2) A commercial subagent must, if asked by a person with whom 24 the subagent is dealing, produce the subagent's registration 25 certificate for inspection by the person. 26 Maximum penalty--100 penalty units. 27 76 Employment of persons in commercial agent's business 28 (1) A commercial agent must not employ, as a commercial 29 subagent, a person the commercial agent knows, or ought to 30 Page 60

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 77] know, does not hold a registration certificate as a commercial 1 subagent. 2 Maximum penalty--200 penalty units. 3 (2) A principal licensee who is an individual and carries on the 4 business of a commercial agent must not employ, as a 5 commercial subagent for the business, himself or herself or 6 another individual with whom the principal licensee carries on 7 business as a commercial agent. 8 Maximum penalty--200 penalty units. 9 (3) A principal licensee that is a corporation and carries on 10 business as a commercial agent must not employ an executive 11 officer of the corporation as a commercial subagent for the 12 business. 13 Maximum penalty-- 14 (a) for an individual guilty under chapter 2 of the Criminal 15 Code of an offence or for section 146--200 penalty 16 units; or 17 (b) for a corporation--1000 penalty units. 18 77 Licence not to be used improperly 19 (1) A commercial agent or subagent must not-- 20 (a) represent that the person's commercial agent licence or 21 registration certificate entitles the person to exercise a 22 power the person may not lawfully exercise; or 23 (b) use the person's licence or certificate to exercise a power 24 the person may not lawfully exercise. 25 Maximum penalty--200 penalty units or 1 year's 26 imprisonment. 27 (2) In this section-- 28 represent includes suggest and imply. 29 use includes attempt to use. 30 Page 61

 


 

Commercial Agents Bill 2010 Part 3 Authorisation and responsibilities [s 78] 78 Unlawful entry 1 A commercial agent or subagent must not, when performing 2 the activities of a commercial agent, enter any premises 3 without lawful authority. 4 Maximum penalty--200 penalty units or 1 year's 5 imprisonment. 6 79 Misrepresentation 7 (1) A commercial agent or subagent must not by any false or 8 misleading representation induce a person to enter into an 9 arrangement for the payment of a debt. 10 Maximum penalty--200 penalty units or 2 years 11 imprisonment. 12 (2) In this section-- 13 false or misleading, in relation to a representation, includes 14 the wilful concealment of a material fact in the representation. 15 induce includes attempt to induce. 16 80 Impersonating commercial agents 17 (1) A creditor, when dealing with a person for payment of a debt, 18 must not use any name, description, document or device 19 intended to make the person believe that the person is not 20 dealing directly with the creditor, but with a commercial agent 21 acting on the creditor's behalf. 22 Maximum penalty--200 penalty units or 2 years 23 imprisonment. 24 (2) A commercial agent must not give any document to a creditor 25 to enable the creditor to make a third person believe that the 26 third person is dealing directly with the commercial agent. 27 Maximum penalty--200 penalty units or 2 years 28 imprisonment. 29 Example for subsection (2)-- 30 commercial agent's letterhead or stationery 31 Page 62

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 81] Part 4 Employee registration 1 Division 1 Activities authorised under 2 registration certificate 3 81 What a registration certificate authorises 4 (1) A registration certificate authorises the holder of the 5 certificate to perform any activity that may be performed by 6 the commercial agent who employs the holder. 7 (2) However, the registration certificate does not authorise the 8 holder to perform an activity that the holder is not authorised 9 to perform because of a condition to which the certificate is 10 subject. 11 Division 2 How to obtain registration 12 82 Steps involved in obtaining registration 13 (1) A person who wishes to obtain registration as a commercial 14 subagent must be a suitable person to hold registration under 15 division 4. 16 (2) The person must apply for registration by-- 17 (a) giving the chief executive an application showing, 18 among other things, the person is eligible to obtain 19 registration; and 20 (b) paying the fees prescribed under a regulation. 21 (3) In deciding the person's application the chief executive must 22 have regard, among other things, to-- 23 (a) the person's suitability to hold a registration certificate 24 under this Act; and 25 (b) the person's eligibility to hold the registration 26 certificate. 27 Page 63

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 83] Division 3 Applications for registration 1 83 Application for registration 2 (1) An applicant for registration as a commercial subagent 3 must-- 4 (a) be an individual; and 5 (b) apply to the chief executive in the approved form; and 6 (c) state the term of the registration being applied for; and 7 (d) establish the applicant's suitability and eligibility for 8 registration as a commercial subagent; and 9 (e) provide any information the chief executive reasonably 10 requires to decide whether the applicant is suitable and 11 eligible to be a commercial subagent. 12 (2) The application must be accompanied by-- 13 (a) the application fee prescribed under a regulation; and 14 (b) the registration issue fee prescribed under a regulation; 15 and 16 (c) if, before or when the application is made, a criminal 17 history costs requirement is made of the applicant--the 18 amount of the costs required to be paid; and 19 (d) 2 recent colour photographs of the applicant of a size 20 prescribed under a regulation and certified as 21 photographs of the applicant in the way prescribed 22 under a regulation. 23 84 Requirement to give chief executive information or 24 material about application 25 (1) The chief executive may, by written notice given to an 26 applicant for registration as a commercial subagent, require 27 the applicant to give the chief executive within a stated 28 reasonable period information or material the chief executive 29 reasonably considers is needed to consider the applicant's 30 application for the registration. 31 Page 64

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 85] (2) The applicant is taken to have withdrawn the application if, 1 within the stated reasonable period, the applicant fails to 2 comply with the chief executive's requirement. 3 Division 4 Suitability of applicants 4 85 Suitability of applicants 5 (1) A person is not a suitable person to obtain registration as a 6 commercial subagent if the person is-- 7 (a) a person who has been convicted, in Queensland or 8 elsewhere, within the preceding 5 years of a serious 9 offence; or 10 (b) currently disqualified from holding a licence or 11 registration certificate; or 12 (c) a person the chief executive decides under section 86 is 13 not a suitable person to obtain registration as a 14 commercial subagent. 15 (2) An individual who is not a suitable person can not obtain 16 registration as a commercial subagent. 17 86 Chief executive must consider suitability of applicants 18 (1) The chief executive must, when deciding whether a person is 19 a suitable person to obtain registration as a commercial 20 subagent, consider all of the following things-- 21 (a) the person's character; 22 (b) whether the person held a licence or registration under a 23 relevant Act that was suspended or cancelled under the 24 relevant Act; 25 (c) whether an amount has been paid from the fund because 26 the person did, or omitted to do, something that gave 27 rise to the claim against the fund; 28 (d) whether the person has been disqualified under a 29 relevant Act from being-- 30 Page 65

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 86] (i) the holder of a licence within the meaning of the 1 relevant Act; or 2 (ii) the holder of a registration certificate within the 3 meaning of the relevant Act; or 4 (iii) an executive officer of a corporation; 5 (e) the person's criminal history; 6 (f) if the person is an insolvent under administration-- 7 (i) the circumstances giving rise to the person being 8 an insolvent under administration; and 9 (ii) whether the person took all reasonable steps to 10 avoid the coming into existence of the 11 circumstances that resulted in the person being an 12 insolvent under administration; and 13 (iii) whether the person is in a position to significantly 14 influence the management of a licensee's business; 15 (g) whether the person has been convicted of an offence 16 against a relevant Act or the Administration Act; 17 (h) whether the person is capable of satisfactorily 18 performing the activities of a commercial subagent; 19 (i) whether the person's name appears in the register of 20 disqualified company directors and other officers under 21 the Corporations Act; 22 Note-- 23 See the Corporations Act, section 1274AA (Register of 24 disqualified company directors and other officers). 25 (j) another thing the chief executive may consider under 26 this Act. 27 (2) If the chief executive decides a person is not a suitable person 28 to obtain registration as a commercial subagent, the chief 29 executive must give the person an information notice about 30 the decision within 14 days after the decision is made. 31 (3) In this section-- 32 fund includes the claim fund under the repealed Act. 33 Page 66

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 87] relevant Act means this Act, an Agents Act, the repealed Act 1 or a corresponding law. 2 87 Investigations about suitability of applicants 3 (1) The chief executive may make investigations about the 4 applicant to help the chief executive decide whether the 5 applicant is a suitable person to obtain registration as a 6 commercial subagent. 7 (2) Without limiting subsection (1), the chief executive may ask 8 the commissioner of the police service for a report about the 9 applicant's criminal history. 10 (3) The commissioner must give the report to the chief executive. 11 (4) However, the report is required to contain only criminal 12 history in the commissioner's possession or to which the 13 commissioner has access. 14 (5) If the criminal history of the applicant includes a conviction 15 recorded against the applicant, the commissioner's report 16 must be written. 17 88 Costs of criminal history report 18 (1) The chief executive may require an applicant to pay the 19 reasonable, but no more than actual, costs of obtaining a 20 report under section 87 about the applicant. 21 (2) The requirement is a criminal history costs requirement. 22 (3) The requirement is sufficiently made of the applicant if it is 23 made generally of applicants for, or for the renewal or 24 restoration of, registration as a commercial subagent in the 25 relevant approved form or notified on the department's 26 website for applications. 27 (4) The chief executive must refund to the applicant an amount 28 paid under the requirement if-- 29 (a) the chief executive refuses the application without 30 asking for the report; or 31 Page 67

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 89] (b) the applicant withdraws the application before the chief 1 executive asks for the report. 2 (5) In this section-- 3 applicant includes proposed applicant. 4 89 Confidentiality of criminal history 5 (1) A public service employee performing functions under this 6 Act must not, directly or indirectly, disclose to anyone else a 7 report about a person's criminal history, or information 8 contained in the report, given under section 87. 9 Maximum penalty--100 penalty units. 10 (2) However, the person does not contravene subsection (1) if-- 11 (a) disclosure of the report or information to someone else 12 is authorised by the chief executive to the extent 13 necessary to perform a function under or relating to this 14 Act; or 15 (b) the disclosure is otherwise required or permitted by law. 16 (3) The chief executive must destroy a written report about a 17 person's criminal history as soon as practicable after 18 considering the person's suitability to obtain registration as a 19 commercial subagent. 20 90 Requirement to give chief executive information or 21 material about suitability 22 (1) This section applies to an applicant for registration as a 23 commercial subagent or the renewal or restoration of the 24 registration. 25 (2) The chief executive may, by written notice given to the 26 applicant, require the applicant to give the chief executive 27 within a stated reasonable period information or material the 28 chief executive reasonably considers is needed to establish the 29 applicant's suitability for the registration. 30 Page 68

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 91] (3) The applicant is taken to have withdrawn the application if, 1 within the stated reasonable period, the applicant fails to 2 comply with the chief executive's requirement. 3 Division 5 Eligibility for registration 4 91 Eligibility for registration as commercial subagent 5 (1) An individual is eligible to obtain registration as a commercial 6 subagent only if the individual-- 7 (a) is at least 18 years; and 8 (b) has the educational or other qualifications for 9 registration prescribed under a regulation. 10 (2) An individual is to be taken to satisfy the requirement 11 mentioned in subsection (1)(b) if the chief executive is 12 satisfied the individual-- 13 (a) has a comparable qualification; or 14 (b) within 2 years before the day the individual's 15 application for registration is received by the chief 16 executive-- 17 (i) has been the holder of a registration certificate 18 under this Act as a commercial subagent; or 19 (ii) has been the holder of a comparable certificate 20 under the repealed Act. 21 (3) In this section-- 22 comparable certificate, under the repealed Act, means a 23 certificate of registration as a commercial subagent granted 24 under the repealed Act. 25 Page 69

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 92] Division 6 Issue of registration certificate 1 92 Chief executive may issue or refuse to issue registration 2 certificate 3 (1) The chief executive may issue or refuse to issue a registration 4 certificate to an applicant. 5 (2) The chief executive may issue a registration certificate to an 6 applicant only if the chief executive is satisfied-- 7 (a) the applicant is a suitable person to obtain registration; 8 and 9 (b) the applicant is eligible to obtain registration; and 10 (c) the application is properly made. 11 (3) For subsection (2)(c), the application is properly made only if 12 it complies with section 83 and is accompanied by the things 13 mentioned in that section. 14 (4) If the chief executive refuses to issue the registration 15 certificate, the chief executive must give the applicant an 16 information notice about the decision within 14 days after the 17 decision is made. 18 (5) If the applicant's application for a registration certificate is 19 refused, the applicant may not make another application for a 20 registration certificate-- 21 (a) for 3 months after the day the chief executive gives the 22 applicant the information notice under subsection (4); or 23 (b) if the applicant applies to QCAT to review the chief 24 executive's decision and the decision is confirmed, for 3 25 months after the day the decision is confirmed. 26 93 Registration certificate--conditions 27 (1) The chief executive may issue a registration certificate on the 28 conditions the chief executive considers necessary or 29 desirable-- 30 Page 70

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 94] (a) for the proper performance of the activities authorised 1 by the certificate; or 2 (b) for another purpose consistent with the achievement of 3 the objects of this Act or the Administration Act. 4 Example-- 5 If the chief executive decides to issue a registration certificate to a 6 person who is or has been an insolvent under administration, the chief 7 executive may issue the certificate subject to a condition that the person 8 not receive, bank or otherwise be responsible for dealing with trust 9 account moneys. 10 (2) A condition may limit or prohibit the performance of an 11 activity authorised under this Act or the Administration Act. 12 (3) If the chief executive decides to issue the certificate on 13 condition, the chief executive must give the applicant an 14 information notice about the decision within 14 days after the 15 decision is made. 16 Division 7 Renewal and restoration of 17 registration certificates 18 Subdivision 1 Renewal 19 94 Application for renewal 20 (1) A commercial subagent may only apply for renewal of the 21 subagent's registration certificate before the certificate 22 expires. 23 (2) The application must-- 24 (a) be made to the chief executive in the approved form; and 25 (b) state the term of the registration being applied for; and 26 (c) be accompanied by-- 27 (i) the application fee prescribed under a regulation; 28 and 29 Page 71

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 95] (ii) the registration certificate renewal fee prescribed 1 under a regulation; and 2 (iii) if, before or when the application is made, a 3 criminal history costs requirement is made of the 4 commercial subagent--the amount of the costs 5 required to be paid. 6 (3) If requested by the chief executive, the application must be 7 accompanied by 2 recent colour photographs of the applicant 8 that are-- 9 (a) of a size prescribed under a regulation; and 10 (b) certified as photographs of the applicant in the way 11 prescribed under a regulation. 12 95 Chief executive may renew or refuse to renew registration 13 certificate 14 (1) The chief executive must consider the renewal application and 15 may renew or refuse to renew the registration certificate. 16 (2) The chief executive may renew the certificate only if the chief 17 executive is satisfied-- 18 (a) the commercial subagent is a suitable person to obtain 19 registration; and 20 (b) the application is properly made; and 21 (c) the commercial subagent meets the eligibility 22 requirements for the certificate. 23 (3) For subsection (2)(b), an application is properly made only if 24 it complies with section 94(2) and is accompanied by the 25 things mentioned in that subsection. 26 (4) If the chief executive decides to refuse the application, the 27 chief executive must give the applicant an information notice 28 about the decision within 14 days after the decision is made. 29 Page 72

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 96] 96 Registration certificate taken to be in force while 1 application for renewal is considered 2 If an application is made under section 94, the commercial 3 subagent's registration certificate is taken to continue in force 4 from the day that it would, apart from this section, have 5 expired until the application for renewal is decided under 6 section 95 or taken to have been withdrawn under section 7 90(3). 8 Subdivision 2 Restoration 9 97 Application for restoration 10 (1) If a commercial subagent's registration certificate expires, the 11 person (former subagent) may apply for restoration of the 12 certificate. 13 (2) The application must-- 14 (a) be made within 3 months after the expiry; and 15 (b) be made to the chief executive in the approved form; and 16 (c) state the term of the registration being applied for; and 17 (d) be accompanied by-- 18 (i) the application fee prescribed under a regulation; 19 and 20 (ii) the registration renewal fee prescribed under a 21 regulation; and 22 (iii) the registration restoration fee prescribed under a 23 regulation; and 24 (iv) if, before or when the application is made, a 25 criminal history costs requirement is made of the 26 former employee--the amount of the costs 27 required to be paid. 28 (3) If requested by the chief executive, the application must be 29 accompanied by 2 recent colour photographs of the former 30 subagent that are-- 31 Page 73

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 98] (a) of a size prescribed under a regulation; and 1 (b) certified as photographs of the former subagent in the 2 way prescribed under a regulation. 3 98 Chief executive may restore or refuse to restore 4 registration certificate 5 (1) The chief executive must consider the restoration application 6 and may restore or refuse to restore the registration certificate. 7 (2) The chief executive may restore the certificate only if the 8 chief executive is satisfied-- 9 (a) the commercial subagent is a suitable person to obtain 10 registration; and 11 (b) the application is properly made; and 12 (c) the commercial subagent meets the eligibility 13 requirements for the certificate. 14 (3) For subsection (2)(b), an application is properly made only if 15 it complies with section 97(2) and is accompanied by the 16 things mentioned in that subsection. 17 (4) If the chief executive decides to refuse the application, the 18 chief executive must give the applicant an information notice 19 about the decision within 14 days after the decision is made. 20 (5) If the chief executive decides to restore the certificate-- 21 (a) the certificate is taken to have been renewed on the day 22 it would, apart from section 99, have expired (the initial 23 expiry date); and 24 (b) to remove any doubt, a thing done during the period 25 starting on the initial expiry date and ending on the day 26 the certificate is restored under this section is taken to 27 have been as validly done as it would have been if the 28 certificate had been renewed immediately before the 29 initial expiry date. 30 Page 74

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 99] 99 Registration certificate taken to be in force while 1 application for restoration is considered 2 If an application is made under section 97, the commercial 3 subagent's registration certificate is taken to continue in force 4 from the day that it would, apart from this section, have 5 expired until the application for restoration is decided under 6 section 98 or taken to have been withdrawn under section 7 90(3). 8 Division 8 Dealings with registration 9 certificates 10 Subdivision 1 Transfer of registration certificate 11 100 Transfer of registration certificate prohibited 12 A registration certificate may not be transferred. 13 Subdivision 2 General 14 101 Amendment of registration certificate conditions 15 (1) The chief executive may amend the conditions of a 16 registration certificate-- 17 (a) on the commercial subagent's application; or 18 (b) on the order of QCAT after a disciplinary hearing; or 19 (c) on the chief executive's own initiative. 20 Note-- 21 QCAT may deal with the conditions of a person's registration certificate 22 under section 122. 23 (2) An application under subsection (1)(a) must be made to the 24 chief executive in the approved form and be accompanied by 25 the application fee prescribed under a regulation. 26 Page 75

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 101] (3) Before making an amendment under subsection (1)(a), the 1 chief executive must be satisfied the commercial subagent 2 meets the eligibility requirements the chief executive 3 considers relevant to the amendment of the condition. 4 (4) Before making an amendment under subsection (1)(c), the 5 chief executive must-- 6 (a) give written notice to the commercial subagent-- 7 (i) of the particulars of the proposed amendment; and 8 (ii) that the commercial subagent may make written 9 submissions to the chief executive about the 10 proposed amendment before a stated day, not later 11 than 14 days after the notice is given to the 12 commercial subagent; and 13 (b) have regard to submissions made to the chief executive 14 by the commercial subagent before the stated day. 15 (5) Subsection (4) does not apply if the chief executive decides 16 that the amendment must be made urgently to ensure 17 compliance with this Act or the Administration Act. 18 (6) If the chief executive decides to amend the conditions of a 19 registration certificate under subsection (1)(c), the chief 20 executive must give the commercial subagent an information 21 notice about the decision within 14 days after the decision is 22 made. 23 (7) The amendment takes effect-- 24 (a) on the day the written notice of the amendment is given 25 to the commercial subagent; or 26 (b) if a later day is stated in the notice, on the stated day. 27 (8) If the chief executive decides to refuse to make an amendment 28 requested under subsection (1)(a), the chief executive must 29 give the commercial subagent an information notice about the 30 decision within 14 days after the decision is made. 31 Page 76

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 102] 102 Return of registration certificate for amendment of 1 conditions 2 (1) If the chief executive amends the conditions of a registration 3 certificate under section 101, the chief executive may require 4 the commercial subagent to produce the certificate for 5 amendment within a stated period of not less than 14 days. 6 (2) The commercial subagent must comply with a requirement 7 under subsection (1), unless the person has a reasonable 8 excuse. 9 Maximum penalty for subsection (2)--100 penalty units. 10 103 Surrender of registration certificate 11 (1) A commercial subagent may surrender the subagent's 12 registration certificate by giving written notice, and returning 13 the certificate, to the chief executive. 14 (2) A registration certificate surrendered under this section stops 15 having effect on the day it is surrendered. 16 Division 9 Immediate suspension and 17 cancellation of registration 18 certificates 19 104 Immediate suspension 20 (1) This section applies if the chief executive believes, on 21 reasonable grounds, that-- 22 (a) a commercial subagent's registration certificate, or a 23 renewal or restoration of the registration certificate, was 24 obtained because of materially incorrect or misleading 25 information; or 26 (b) both-- 27 (i) an irregularity or deficiency exists in a licensee's 28 trust account; and 29 Page 77

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 105] (ii) a commercial subagent of the licensee may be 1 responsible for the irregularity or deficiency; or 2 (c) a commercial subagent-- 3 (i) has contravened or is contravening this Act or the 4 Administration Act; or 5 (ii) is likely or proposing to engage in conduct that 6 would contravene this Act or the Administration 7 Act. 8 (2) The chief executive may suspend the commercial subagent's 9 registration certificate, whether or not disciplinary 10 proceedings have been started under this Act. 11 (3) The certificate may be suspended for the period (not more 12 than 28 days), and on the conditions, the chief executive 13 decides. 14 (4) The chief executive must give the commercial subagent an 15 information notice about the suspension within 14 days after 16 suspending the registration. 17 (5) The commercial subagent must return the certificate to the 18 chief executive within 14 days after receiving the notice, 19 unless the commercial subagent has a reasonable excuse. 20 Maximum penalty for subsection (5)--100 penalty units. 21 105 Immediate cancellation 22 (1) The registration certificate of a commercial subagent is 23 cancelled if the commercial subagent is convicted of a serious 24 offence. 25 (2) The commercial subagent must return the certificate to the 26 chief executive within 14 days after the conviction, unless the 27 commercial subagent has a reasonable excuse. 28 Maximum penalty--100 penalty units. 29 Page 78

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 106] Division 10 General provisions about 1 commercial subagent registration 2 106 Form of registration certificate 3 (1) A registration certificate must be in the approved form. 4 (2) However, the chief executive may approve-- 5 (a) a form of certificate for office display purposes; and 6 (b) a form of certificate for personal identification purposes. 7 Examples-- 8 1 A form of certificate for office display purposes may be in the form 9 suitable for framing and display in an office. 10 2 A form of certificate for personal identification purposes may be in 11 the form of a small photo identification card suitable for carrying 12 easily on one's person. 13 (3) The certificate must contain the following particulars-- 14 (a) the name of the commercial subagent; 15 (b) the date of issue of the certificate; 16 (c) the expiry date of the certificate; 17 (d) for a personal identification certificate, a recent 18 photograph of the commercial subagent; 19 (e) other particulars prescribed under a regulation. 20 107 Term of registration certificate 21 A registration certificate may be issued for a 1 year or 3 year 22 term. 23 108 Replacement certificates 24 (1) A commercial subagent may apply to the chief executive for 25 the replacement of a lost, stolen, destroyed or damaged 26 registration certificate. 27 Page 79

 


 

Commercial Agents Bill 2010 Part 4 Employee registration [s 109] (2) The application must be made in the approved form and be 1 accompanied by the fee prescribed under a regulation. 2 (3) The chief executive must grant the application if the chief 3 executive is satisfied the certificate has been lost, stolen or 4 destroyed, or damaged in a way to require its replacement. 5 (4) If the chief executive grants the application, the chief 6 executive must issue another certificate to the applicant to 7 replace the lost, stolen, destroyed or damaged certificate. 8 109 Register of registration certificates 9 (1) The chief executive must keep a register of registration 10 certificates and applications for registration certificates 11 (registration certificate register). 12 (2) The registration certificate register may form part of the 13 licence register. 14 (3) The registration certificate register must contain the following 15 particulars-- 16 (a) for each applicant for a registration certificate-- 17 (i) the applicant's name; and 18 (ii) the date of the application; and 19 (iii) the application number; 20 (b) for each commercial subagent-- 21 (i) the commercial subagent's name; and 22 (ii) the dates of issue and expiry of the commercial 23 subagent's current registration certificate; and 24 (iii) any conditions imposed on the certificate; and 25 (iv) the commercial subagent's registration certificate 26 number; and 27 (v) particulars of any surrender, suspension, 28 cancellation or revocation of the commercial 29 subagent's registration certificate or any licence or 30 Page 80

 


 

Commercial Agents Bill 2010 Part 5 Trust accounts [s 110] certificate issued to the commercial subagent under 1 this or the repealed Act. 2 (4) A person may, on payment of the fee prescribed under a 3 regulation, inspect, or get a copy of details in, the part of the 4 register containing the particulars mentioned in subsection 5 (3)-- 6 (a) at a place or places decided by the chief executive; or 7 (b) by using a computer. 8 (5) A person may pay the fee, in advance or in arrears, under an 9 arrangement approved by the chief executive. 10 (6) The register may be kept in the way the chief executive 11 considers appropriate. 12 (7) In this section-- 13 contain includes record and store. 14 110 Commercial subagents to notify chief executive of 15 changes in circumstances 16 (1) A commercial subagent must give written notice to the chief 17 executive of a prescribed change in the commercial 18 subagent's circumstances within 14 days after the change. 19 Maximum penalty--100 penalty units. 20 (2) In this section-- 21 prescribed change means a change prescribed under a 22 regulation. 23 Part 5 Trust accounts 24 111 Opening and maintaining trust accounts 25 (1) A principal licensee must open and maintain a trust account 26 under the Administration Act if an amount is likely to be 27 received by the licensee for a transaction, or with written 28 Page 81

 


 

Commercial Agents Bill 2010 Part 6 Claims against the fund [s 112] direction for its use, when performing the activities of a 1 commercial agent. 2 Maximum penalty--200 penalty units or 2 years 3 imprisonment. 4 (2) In this section-- 5 amount does not include an amount payable to the licensee 6 for a transaction in refund of an expense the licensee was 7 authorised to incur and did incur and for which the licensee 8 holds a receipt. 9 Part 6 Claims against the fund 10 112 Definitions for pt 6 11 In this part-- 12 financial loss, suffered by a person, if evidenced by a 13 judgment of a court, does not include interest awarded on the 14 judgment. 15 licensee includes a former licensee and a person who is not 16 licensed, but who acts as a licensee. 17 relevant person means-- 18 (a) a licensee; or 19 (b) a licensee's employee or agent, or a person carrying on 20 business with the licensee; or 21 (c) a person having charge or control, or apparent charge or 22 control, of a licensee's registered office or business. 23 113 Claims 24 (1) A person may, in the way provided under the Administration 25 Act, make a claim against the fund if the person suffers 26 Page 82

 


 

Commercial Agents Bill 2010 Part 6 Claims against the fund [s 114] financial loss because of the happening of any of the 1 following events-- 2 (a) a contravention of section 136 by a relevant person; 3 (b) a stealing, misappropriation or misapplication by a 4 relevant person of property entrusted to the person as 5 agent for someone else in the person's capacity as a 6 relevant person. 7 (2) A person may make a claim against the fund even if the 8 person has made another claim for the loss against a receiver 9 and the receiver has not considered or has refused the other 10 claim. 11 114 Persons who can not claim 12 (1) A person who suffers financial loss because of, or arising out 13 of, the stealing, misappropriation or misapplication of an 14 amount that a relevant person was directed to invest under the 15 Administration Act, section 13 can not make a claim against 16 the fund. 17 (2) The following persons can not make a claim against the fund 18 for any of the following financial losses-- 19 (a) a relevant person who suffers financial loss in the course 20 of performing an activity, or carrying on business, as a 21 relevant person; 22 (b) a person holding a licence, however described, under a 23 corresponding law that is similar to a licence under this 24 Act who suffers financial loss in the course of 25 performing an activity, or carrying on business, under 26 the person's licence. 27 Page 83

 


 

Commercial Agents Bill 2010 Part 7 Jurisdiction of QCAT [s 115] Part 7 Jurisdiction of QCAT 1 Division 1 Preliminary 2 115 Definitions for pt 7 3 In this part-- 4 commercial subagent includes a former subagent. 5 former licensee means a person who held a licence under this 6 or the repealed Act at any time within 3 years before a 7 proceeding under this part is started involving the person. 8 former subagent means a person who was a commercial 9 subagent, or the holder of a certificate of registration under 10 the repealed Act, at any time within 1 year before a 11 proceeding under this part is started involving the person. 12 licensee includes a former licensee. 13 Division 2 Jurisdiction 14 116 Jurisdiction 15 For this Act, QCAT has the following jurisdiction-- 16 (a) to hear and decide disciplinary matters involving 17 licensees and commercial subagents; 18 (b) to review decisions of the chief executive relating to 19 licensing and registration. 20 Division 3 Disciplinary proceedings 21 117 Grounds for starting disciplinary proceedings 22 (1) The following are grounds for starting a disciplinary 23 proceeding against a licensee or commercial subagent-- 24 Page 84

 


 

Commercial Agents Bill 2010 Part 7 Jurisdiction of QCAT [s 117] (a) the licensee or commercial subagent has been convicted 1 of-- 2 (i) an indictable offence; or 3 (ii) an offence against this Act or the Administration 4 Act; 5 (b) the licensee or commercial subagent has contravened or 6 breached-- 7 (i) this Act, including the code of conduct; or 8 (ii) the Administration Act; or 9 (iii) an undertaking given under part 8, division 2; or 10 (iv) a corresponding law; 11 (c) the licensee or commercial subagent has been 12 disqualified from holding a licence under a 13 corresponding law; 14 (d) an amount has been paid from the fund because the 15 licensee or commercial subagent did, or omitted to do, 16 something that gave rise to a claim against the fund; 17 (e) the licensee or commercial subagent fraudulently or 18 improperly obtained, or helped someone else to 19 fraudulently or improperly obtain, a licence or 20 registration certificate; 21 (f) the licensee or commercial subagent has failed to 22 comply with an order made by a court, the former 23 tribunal or QCAT; 24 (g) for a licensee-- 25 (i) the licensee is not a suitable person to hold a 26 licence; or 27 (ii) the licensee has carried on, or is carrying on, 28 business under a licence with someone who is not a 29 suitable person to hold a licence; or 30 (iii) the licensee has, in carrying on a business or 31 performing an activity, been incompetent or acted 32 in an unprofessional way; or 33 Page 85

 


 

Commercial Agents Bill 2010 Part 7 Jurisdiction of QCAT [s 117] (iv) the licensee has failed to ensure that the licensee's 1 employed licensees or commercial subagents, or 2 employees under the licensee's supervision-- 3 (A) are properly supervised in the performance 4 of their duties; or 5 (B) comply with this Act; or 6 (v) the licensee has failed to comply with a condition 7 of the licensee's licence; or 8 (vi) the licensee is an executive officer of a corporation 9 in relation to whom QCAT finds grounds exist to 10 take disciplinary action under section 122; or 11 (vii) if the licensee is a corporation-- 12 (A) an executive officer of the corporation is not 13 a suitable person to be an executive officer of 14 a corporation; or 15 (B) an executive officer of the corporation is 16 disqualified under this Act from being an 17 executive officer of a corporation; 18 (h) for a commercial subagent-- 19 (i) the commercial subagent is not eligible to be 20 employed as a commercial subagent; or 21 (ii) the commercial subagent has, in performing an 22 activity of a licensee, been incompetent or acted in 23 an unprofessional way. 24 (2) The chief executive must not start a disciplinary proceeding 25 against an executive officer under subsection (1)(g)(vi) if the 26 chief executive is satisfied-- 27 (a) the act or omission relevant to the proceeding against 28 the corporation was done or made without the executive 29 officer's knowledge; and 30 (b) the executive officer could not, with reasonable 31 diligence, have prevented the doing of the act or the 32 making of the omission. 33 Page 86

 


 

Commercial Agents Bill 2010 Part 7 Jurisdiction of QCAT [s 118] 118 Starting disciplinary proceedings 1 The chief executive may apply to QCAT to conduct a 2 proceeding to decide whether grounds exist under section 117 3 for taking disciplinary action against a licensee or commercial 4 subagent. 5 Division 4 Review proceedings 6 119 Person dissatisfied with chief executive's decision may 7 seek review 8 A person who is dissatisfied with a decision of the chief 9 executive made under a provision stated in schedule 2 may 10 apply to QCAT to have the decision reviewed. 11 120 Stay of operation of decisions 12 (1) A decision of the chief executive, other than a decision made 13 under section 48 or 104, being reviewed is stayed for the 14 purpose of securing the effectiveness of the review. 15 (2) However, the period of a stay does not extend past the time 16 when QCAT decides the application. 17 121 QCAT may extend time 18 (1) QCAT may extend the time within which to seek review of a 19 decision of the chief executive if it is satisfied-- 20 (a) the application is made within 42 days after the person 21 receives notice of the decision to be reviewed; and 22 (b) it is appropriate to extend time having regard to-- 23 (i) the application generally; and 24 (ii) the justice of the matter generally. 25 (2) No appeal lies against QCAT's decision under this section. 26 Page 87

 


 

Commercial Agents Bill 2010 Part 7 Jurisdiction of QCAT [s 122] Division 5 Proceedings generally 1 Subdivision 1 QCAT's orders 2 122 Orders QCAT may make on disciplinary hearing 3 (1) QCAT may make 1 or more of the following orders against a 4 person in relation to whom QCAT finds grounds exist to take 5 disciplinary action under this Act-- 6 (a) an order reprimanding the person; 7 (b) an order that the person pay to the State, within the 8 period stated in the order, a fine of not more than-- 9 (i) for an individual--200 penalty units; or 10 (ii) for a corporation--1000 penalty units; 11 (c) an order that the person pay compensation (inclusive of 12 any commission to which the person is not entitled) to 13 someone else who has suffered loss or damage because 14 of the act or omission that resulted in the finding; 15 (d) an order that the person's licence or registration 16 certificate be suspended for the period stated in the 17 order; 18 (e) an order-- 19 (i) if the person is the holder of a licence or 20 registration certificate when the order is 21 made--that the licence or registration certificate be 22 cancelled; or 23 (ii) whether or not the person is the holder of a licence 24 or registration certificate when the order is 25 made--that the person be disqualified 26 permanently, or for the period stated in the order, 27 from holding a licence or registration certificate; 28 (f) an order, for a licensed individual who is an executive 29 officer of a corporation, that the individual be 30 disqualified permanently, or for the period stated in the 31 Page 88

 


 

Commercial Agents Bill 2010 Part 7 Jurisdiction of QCAT [s 123] order, from being an executive officer of a corporation 1 that holds a licence; 2 (g) an order imposing conditions on, or amending or 3 revoking the conditions of, the person's licence or 4 registration certificate; 5 (h) another order QCAT considers appropriate to ensure the 6 person complies with this Act. 7 (2) QCAT may not make an order under subsection (1)(e)(ii) 8 disqualifying the person from holding a licence or registration 9 certificate if QCAT is satisfied that a court has, for the matter 10 giving rise to the disciplinary proceeding-- 11 (a) been asked to make an order under section 147(2) 12 disqualifying the person from holding a licence or 13 registration certificate; and 14 (b) declined to do so. 15 (3) The chief executive may recover a fine, ordered by QCAT to 16 be paid by the person to the chief executive, as a debt owing 17 to the chief executive in a court with jurisdiction to recover 18 debts up to the amount of the fine. 19 123 Stopping contraventions 20 (1) This section applies if QCAT is satisfied, on application by 21 the chief executive, that a person is doing, or is about to do, 22 something in contravention of this Act. 23 (2) QCAT may, by order, prohibit the person who is doing, or is 24 about to do, the thing (the prohibited person) from starting or 25 continuing to do the thing. 26 (3) QCAT may make an order under this section on the chief 27 executive's application made without notice to the prohibited 28 person but, in that case, QCAT must allow the prohibited 29 person a reasonable opportunity to show cause why the order 30 should not be confirmed. 31 (4) If QCAT, after considering the prohibited person's evidence 32 and submissions, if any, and any further evidence or 33 Page 89

 


 

Commercial Agents Bill 2010 Part 8 Injunctions and undertakings [s 124] submissions of the chief executive, is not satisfied the order 1 should continue in force, QCAT must rescind the order. 2 (5) A person must not contravene an order under this section. 3 Maximum penalty--540 penalty units. 4 (6) An order under this section has effect on the giving of a copy 5 of the order to the prohibited person. 6 Subdivision 2 Chief executive's right of appeal 7 124 Appeal 8 (1) The chief executive may appeal to the appeal tribunal against 9 any decision of QCAT, but only on the ground of error of law. 10 (2) In this section-- 11 appeal tribunal means QCAT as constituted under the QCAT 12 Act, section 166 for the purposes of an appeal. 13 Part 8 Injunctions and undertakings 14 Division 1 Injunctions 15 125 Injunctions 16 An injunction under this division may be granted by the 17 District Court against a person (respondent) at any time. 18 126 Who may apply for injunction 19 The following persons may apply to the District Court for an 20 injunction-- 21 Page 90

 


 

Commercial Agents Bill 2010 Part 8 Injunctions and undertakings [s 127] (a) the chief executive; 1 (b) a person aggrieved by the respondent's conduct. 2 127 Grounds for injunction 3 The District Court may grant an injunction if the court is 4 satisfied that a person has engaged, or is proposing to engage, 5 in conduct that constitutes or would constitute-- 6 (a) a contravention of this Act or the code of conduct; or 7 (b) attempting to contravene this Act or the code of 8 conduct; or 9 (c) aiding, abetting, counselling or procuring a person to 10 contravene this Act or the code of conduct; or 11 (d) inducing or attempting to induce, whether by threats, 12 promises or otherwise, a person to contravene this Act 13 or the code of conduct; or 14 (e) being in any way, directly or indirectly, knowingly 15 concerned in, or party to, the contravention by a person 16 of this Act or the code of conduct; or 17 (f) conspiring with others to contravene this Act or the code 18 of conduct. 19 128 Court's powers for injunctions 20 (1) The power of the District Court to grant an injunction 21 restraining a person from engaging in conduct may be 22 exercised-- 23 (a) whether or not it appears to the court that the person 24 intends to engage again, or to continue to engage, in 25 conduct of that kind; and 26 (b) whether or not the person has previously engaged in 27 conduct of that kind. 28 (2) The power of the court to grant an injunction requiring a 29 person to do an act or thing may be exercised-- 30 Page 91

 


 

Commercial Agents Bill 2010 Part 8 Injunctions and undertakings [s 129] (a) whether or not it appears to the court that the person 1 intends to fail again, or to continue to fail, to do the act 2 or thing; and 3 (b) whether or not the person has previously failed to do the 4 act or thing. 5 (3) An interim injunction may be granted under this part until the 6 application is finally decided. 7 (4) The District Court may rescind or vary an injunction at any 8 time. 9 129 Terms of injunction 10 (1) The District Court may grant an injunction in the terms the 11 court considers appropriate. 12 (2) Without limiting the court's power under subsection (1), an 13 injunction may be granted restraining a person from carrying 14 on a business as a licensee (whether or not the person is 15 licensed or the business is carried on as part of, or incidental 16 to, the carrying on of another business)-- 17 (a) for a stated period; or 18 (b) except on stated terms and conditions. 19 (3) Also, the court may grant an injunction requiring a person to 20 take stated action, including action to disclose information or 21 publish advertisements, to remedy any adverse consequences 22 of the person's contravention of this Act or the code of 23 conduct. 24 130 Undertakings as to costs 25 If the chief executive applies for an injunction under this 26 division, no undertaking as to damages or costs may be 27 required or made. 28 Page 92

 


 

Commercial Agents Bill 2010 Part 8 Injunctions and undertakings [s 131] Division 2 Undertakings 1 131 Chief executive may seek undertaking after 2 contravention 3 (1) This section applies if the chief executive reasonably believes 4 a person has contravened or been involved in a contravention 5 of this Act or the code of conduct. 6 (2) The chief executive may, by written notice given to the 7 person-- 8 (a) state the act or omission the chief executive believes is 9 the contravention; and 10 (b) ask the person to give the chief executive a written 11 undertaking that the person will not continue or repeat 12 the act or omission. 13 (3) If-- 14 (a) the person gives the undertaking and, if the 15 contravention is conduct consisting of a series of acts or 16 omissions, the person stops the conduct; and 17 (b) the chief executive accepts the undertaking; 18 the chief executive can not start an offence proceeding against 19 the person for the contravention, unless the chief executive 20 withdraws the undertaking under section 133. 21 132 Undertaking about other matter 22 Without limiting section 131, the chief executive may accept 23 an undertaking given by a person about anything for which the 24 chief executive or an inspector has a function or power. 25 Example of type of undertaking for this section-- 26 an undertaking to publish corrective advertising 27 Page 93

 


 

Commercial Agents Bill 2010 Part 8 Injunctions and undertakings [s 133] 133 Variation and withdrawal of undertakings 1 (1) If the chief executive accepts the undertaking, it may be 2 varied or withdrawn at any time by-- 3 (a) the person who gave it, but only if the chief executive 4 agrees to the variation or withdrawal; or 5 (b) the chief executive, if the chief executive believes, on 6 reasonable grounds-- 7 (i) that, before it was accepted, the person who gave it 8 contravened this Act, or the repealed Act, in a way 9 unknown to the chief executive; and 10 (ii) had the chief executive known about the 11 contravention, the chief executive would not have 12 accepted the undertaking or would not have 13 accepted it unless its terms were changed. 14 (2) The chief executive may also withdraw the undertaking if the 15 chief executive believes, on reasonable grounds, it is no 16 longer necessary. 17 (3) If the chief executive varies or withdraws, or agrees to the 18 variation or withdrawal of, the undertaking, the chief 19 executive must give the person who gave it written notice of 20 its variation or withdrawal. 21 (4) The variation or withdrawal takes effect when written notice 22 of the variation or withdrawal is received by the person. 23 134 Enforcement of undertakings 24 (1) If the chief executive believes on reasonable grounds a person 25 has contravened a term of an undertaking, the chief executive 26 may apply to the District Court for an order under this section. 27 (2) If the District Court is satisfied that the person has 28 contravened the term, the court may make 1 or more of the 29 following orders-- 30 (a) an order directing the person to comply with the term; 31 (b) an order directing the person to pay to the State an 32 amount that is not more than the direct or indirect 33 Page 94

 


 

Commercial Agents Bill 2010 Part 8 Injunctions and undertakings [s 135] financial benefit obtained by the person from, and 1 reasonably attributable to, the contravention; 2 (c) an order directing the person to pay compensation to 3 someone else who has suffered loss or damage because 4 of the contravention; 5 (d) an order directing the person to give a security bond to 6 the State for a stated period; 7 (e) another order the court considers appropriate. 8 (3) The District Court may order the forfeiture to the State of all 9 or part of a security bond given by a person under subsection 10 (2)(d) if-- 11 (a) the chief executive applies to the court for the order; and 12 (b) the court is satisfied that the person contravened the 13 undertaking during the period for which the bond was 14 given. 15 135 Register of undertakings 16 (1) The chief executive must keep a register of each undertaking 17 given to the chief executive by a person under this division. 18 (2) The register must contain a copy of the undertaking. 19 (3) A person may, on payment of the fee prescribed under a 20 regulation, inspect, or get a copy of details in, the register-- 21 (a) at a place or places decided by the chief executive; or 22 (b) by using a computer. 23 (4) A person may pay the fee, in advance or in arrears, under an 24 arrangement approved by the chief executive. 25 (5) The register may be kept in the way the chief executive 26 considers appropriate. 27 (6) The chief executive may publish information contained in the 28 register on the department's website. 29 Page 95

 


 

Commercial Agents Bill 2010 Part 9 General contraventions, evidentiary matters and legal proceedings [s 136] Part 9 General contraventions, 1 evidentiary matters and legal 2 proceedings 3 Division 1 General contraventions 4 136 Wrongful conversion and false accounts 5 (1) Subsection (2) applies if a licensee, in the performance of the 6 activities of a licensee, receives an amount belonging to 7 someone else. 8 (2) The licensee must not-- 9 (a) dishonestly convert the amount to the licensee's own or 10 someone else's use; or 11 (b) dishonestly render an account of the amount knowing it 12 to be false in a material particular. 13 Maximum penalty--1000 penalty units or 5 years 14 imprisonment. 15 (3) For a prosecution under subsection (2)(a), it is enough for the 16 prosecution to prove that the licensee dishonestly converted 17 an amount belonging to someone else to the licensee's own 18 use or someone else's use without having to prove that the 19 amount belonged to a particular person. 20 (4) A licensee must not represent that the licensee has received an 21 amount if the licensee knows the licensee did not receive the 22 amount, including, for example, by rendering an account of 23 the amount. 24 Maximum penalty--540 penalty units. 25 (5) In this section-- 26 licensee includes a former licensee and a person who is not 27 licensed, but who acts as a licensee. 28 Page 96

 


 

Commercial Agents Bill 2010 Part 9 General contraventions, evidentiary matters and legal proceedings [s 137] 137 Offence to charge fee for providing documents etc. 1 (1) A licensee or a licensee's employee must not charge a fee for 2 the provision, preparation or completion of a document for a 3 transaction relating to, or arising out of, the performance of a 4 licensee's activities. 5 Maximum penalty--200 penalty units or 1 year's 6 imprisonment. 7 (2) Subsection (1) does not limit the Legal Profession Act 2007, 8 section 24 or 25. 9 138 Offence to ask for, or receive, excess or improper 10 remuneration 11 (1) If an amount is prescribed under a regulation as the maximum 12 amount allowed to a licensee for the performance of a 13 licensee's activities for a stated transaction, a licensee must 14 not ask for, or receive, a commission or reward for the 15 transaction greater than the amount allowed under the 16 regulation. 17 Maximum penalty--200 penalty units or 1 year's 18 imprisonment. 19 (2) If, in a proceeding under this section, an amount is alleged to 20 be payable to the licensee for recouping expenditure lawfully 21 incurred by the licensee in connection with the transaction, 22 the licensee must establish to the court's satisfaction, on the 23 balance of probabilities, that the expenditure was lawfully 24 incurred. 25 (3) If a licensee is convicted of an offence against subsection (1) 26 or fails to satisfy the court under subsection (2) about 27 expenditure incurred, the convicting court must also order the 28 licensee to refund the amount to which the licensee was not 29 entitled to the person from whom it was obtained. 30 (4) Subsection (1) does not prevent the licensee asking for or 31 receiving an amount more than the maximum amount allowed 32 under the regulation if the amount is for GST payable for a 33 supply relating to the transaction. 34 Page 97

 


 

Commercial Agents Bill 2010 Part 9 General contraventions, evidentiary matters and legal proceedings [s 139] 139 Offence to lend or borrow licence 1 (1) A licensee must not-- 2 (a) lend or hire out the licensee's licence to someone else; 3 or 4 (b) notify or advertise that a licence is available for sale, 5 loan or hire, or on another basis, to someone else, 6 whether licensed or not; or 7 (c) permit or allow someone else to hold out that the person 8 is the holder of the licence issued to the licensee. 9 Maximum penalty--200 penalty units or 2 years 10 imprisonment. 11 (2) A person must not borrow, hire or buy a licensee's licence. 12 Maximum penalty--200 penalty units or 2 years 13 imprisonment. 14 (3) If a person who is not the holder of an appropriate licence or 15 the licensee's substitute has the effective or apparent 16 management or control of a licensee's business, the licensee is 17 taken to have lent, and the person is taken to have borrowed, 18 the licensee's licence. 19 140 False or misleading statements 20 A person must not, for this Act, state anything to an official 21 the person knows is false or misleading in a material 22 particular. 23 Maximum penalty--200 penalty units or 2 years 24 imprisonment. 25 141 False or misleading documents 26 (1) A person must not, for this Act, give an official a document 27 containing information the person knows is false or 28 misleading in a material particular. 29 Maximum penalty--200 penalty units or 2 years 30 imprisonment. 31 Page 98

 


 

Commercial Agents Bill 2010 Part 9 General contraventions, evidentiary matters and legal proceedings [s 142] (2) Subsection (1) does not apply to a person if the person, when 1 giving the document-- 2 (a) informs the official, to the best of the person's ability, 3 how it is false or misleading; and 4 (b) if the person has, or can reasonably obtain, the correct 5 information, gives the correct information. 6 (3) A person must not make an entry in a document required or 7 permitted to be made or kept under this Act knowing the entry 8 to be false or misleading in a material particular. 9 Maximum penalty--200 penalty units or 2 years 10 imprisonment. 11 Division 2 Evidentiary matters 12 142 Evidentiary provisions 13 (1) This section applies to a proceeding under this Act. 14 (2) The appointment or power of an inspector must be presumed 15 unless a party, by reasonable notice, requires proof of-- 16 (a) the appointment; or 17 (b) the power to do anything under this Act. 18 (3) A signature purporting to be the signature of the chief 19 executive is evidence of the signature it purports to be. 20 (4) A certificate purporting to be signed by the chief executive, a 21 member of QCAT or the registrar stating any of the following 22 matters is evidence of the matter-- 23 (a) a stated document is-- 24 (i) an order, direction, requirement or decision, or a 25 copy of an order, direction, requirement or 26 decision, given or made under this Act; or 27 (ii) a notice, or a copy of a notice, given under this 28 Act; or 29 Page 99

 


 

Commercial Agents Bill 2010 Part 9 General contraventions, evidentiary matters and legal proceedings [s 143] (iii) a record, or a copy of a record, kept under this Act; 1 or 2 (iv) a document, or a copy of a document, kept under 3 this Act; 4 (b) on a stated day, a stated person-- 5 (i) was, or was not, the holder of a stated licence or 6 registration certificate under this Act; or 7 (ii) was given a stated notice, order, requirement or 8 direction under this Act. 9 (5) In this section-- 10 registrar means the principal registrar under the QCAT Act. 11 143 Entries in licensee's documents 12 An entry in a document kept by or belonging to a licensee or 13 found in the licensee's premises is evidence that the entry has 14 been made by or with the authority of the licensee. 15 Division 3 Proceedings 16 144 Proceedings for an offence 17 (1) Subject to subsection (2), a proceeding for an offence against 18 this Act must be taken in a summary way under the Justices 19 Act 1886 within the later of the following-- 20 (a) 1 year after the offence is committed; 21 (b) 6 months after the commission of the offence comes to 22 the complainant's knowledge, but within 2 years after 23 the commission of the offence. 24 (2) A proceeding for an indictable offence may be taken, at the 25 prosecution's election-- 26 (a) by way of summary proceedings under the Justices Act 27 1886; or 28 Page 100

 


 

Commercial Agents Bill 2010 Part 9 General contraventions, evidentiary matters and legal proceedings [s 144] (b) on indictment. 1 (3) A proceeding against a person for an indictable offence must 2 be before a magistrate if it is a proceeding-- 3 (a) for the summary conviction of the person; or 4 (b) for an examination of witnesses for the charge. 5 (4) If a proceeding for an indictable offence is brought before a 6 justice who is not a magistrate, jurisdiction is limited to taking 7 or making a procedural action or order within the meaning of 8 the Justices of the Peace and Commissioners for Declarations 9 Act 1991. 10 (5) If-- 11 (a) a person charged with an indictable offence asks at the 12 start of a summary proceeding for the offence that the 13 charge be prosecuted on indictment; or 14 (b) the magistrate hearing a charge of an indictable offence 15 considers the charge should be prosecuted on 16 indictment; 17 the magistrate-- 18 (c) must not decide the charge as a summary offence; and 19 (d) must proceed by way of a committal proceeding. 20 (6) If a magistrate acts under subsection (5)-- 21 (a) any plea of the person charged, made at the start of the 22 proceeding, must be disregarded; and 23 (b) any evidence brought in the proceeding before the 24 magistrate decided to act under subsection (5) is taken to 25 be evidence in the proceeding for the committal of the 26 person for trial or sentence; and 27 (c) before committing the person for trial or sentence, the 28 magistrate must make a statement to the person under 29 the Justices Act 1886, section 104(2)(b). 30 (7) The maximum penalty that may be imposed on a summary 31 conviction of an indictable offence is 200 penalty units or 1 32 year's imprisonment. 33 Page 101

 


 

Commercial Agents Bill 2010 Part 9 General contraventions, evidentiary matters and legal proceedings [s 145] (8) In this section-- 1 indictable offence means an offence against this Act for 2 which the maximum penalty of imprisonment is more than 2 3 years. 4 145 Responsibility for acts or omissions of representatives 5 (1) This section applies in a proceeding for an offence against this 6 Act. 7 (2) If it is relevant to prove a person's state of mind about a 8 particular act or omission, it is enough to show-- 9 (a) the act was done or omitted to be done by a 10 representative of the person within the scope of the 11 representative's actual or apparent authority; and 12 (b) the representative had the state of mind. 13 (3) An act done or omitted to be done for a person by a 14 representative of the person within the scope of the 15 representative's actual or apparent authority is taken to have 16 been done or omitted to be done also by the person, unless the 17 person proves the person could not, by the exercise of 18 reasonable diligence, have prevented the act or omission. 19 (4) In this section-- 20 offence includes a contravention of this Act for which an 21 amount may be ordered by the District Court or QCAT to be 22 paid as a money penalty. 23 representative means-- 24 (a) of a corporation--an executive officer, employee or 25 agent of the corporation; or 26 (b) of an individual--an employee or agent of the 27 individual. 28 state of mind, of a person, includes-- 29 (a) the person's knowledge, intention, opinion, belief or 30 purpose; and 31 Page 102

 


 

Commercial Agents Bill 2010 Part 9 General contraventions, evidentiary matters and legal proceedings [s 146] (b) the person's reasons for the intention, opinion, belief or 1 purpose. 2 146 Executive officers must ensure corporation complies 3 with Act 4 (1) The executive officers of a corporation must ensure that the 5 corporation complies with this Act. 6 (2) If a corporation commits an offence against a provision of this 7 Act, each of the executive officers of the corporation also 8 commit an offence, namely, the offence of failing to ensure 9 that the corporation complies with the provision. 10 Maximum penalty--the penalty for the contravention of the 11 provision by an individual or, if the penalty is expressed to be 12 for this section, the expressed penalty. 13 (3) Evidence that the corporation has been convicted of an 14 offence against a provision of this Act is evidence that each of 15 the executive officers committed the offence of failing to 16 ensure that the corporation complies with the provision. 17 (4) However, it is a defence for an executive officer to prove 18 that-- 19 (a) if the officer was in a position to influence the conduct 20 of the corporation in relation to the offence--the officer 21 took all reasonable steps to ensure the corporation 22 complied with the provision; or 23 (b) the officer was not in a position to influence the conduct 24 of the corporation in relation to the offence. 25 (5) For subsection (4)(a), it is sufficient for the executive officer 26 to prove that the act or omission that was the offence was 27 done or made without the officer's knowledge despite the 28 officer having taken all reasonable steps to ensure the 29 corporation complied with the provision. 30 Page 103

 


 

Commercial Agents Bill 2010 Part 10 General [s 147] 147 Power of court 1 (1) A court may, in addition to any other penalty it may impose, 2 order that a licensee's licence or a commercial agent's 3 registration certificate be suspended for a stated period or 4 cancelled if the licensee or commercial subagent has been 5 convicted of an offence against this Act. 6 (2) The court may also order that a person convicted of an offence 7 against this Act be disqualified from holding a licence or 8 registration certificate under this Act for a stated period or 9 permanently. 10 (3) The court may make an order under subsection (1) or (2)-- 11 (a) on the chief executive's application; or 12 (b) on its own initiative. 13 (4) If an order is made by a court under this section on the court's 14 own initiative, the court must cause a copy of the order to be 15 given to the chief executive. 16 148 Allegations of false or misleading representations or 17 statements etc. 18 In any proceeding for an offence against this Act involving a 19 false or misleading statement, representation or entry, or false 20 or misleading information, it is enough for a charge to state 21 that the statement, representation, entry or information was 22 `false or misleading'. 23 Part 10 General 24 149 Public warning statements 25 (1) The Minister or chief executive may make or issue a public 26 statement identifying and giving warnings or information 27 about any of the following-- 28 Page 104

 


 

Commercial Agents Bill 2010 Part 10 General [s 150] (a) contraventions of the code of conduct that have resulted 1 in disciplinary action and persons who commit the 2 contraventions; 3 (b) business practices regulated under this Act that are 4 unfair and persons who engage in the unfair practices; 5 (c) the commission of offences against this Act and persons 6 who commit the offences. 7 (2) The statement may identify particular contraventions, 8 business practices, offences and persons. 9 (3) The Minister or chief executive must not make or issue a 10 statement under this section unless satisfied that it is in the 11 public interest to do so. 12 150 Civil remedies not affected 13 Nothing in this Act affects or limits any civil remedy that a 14 person may have against a licensee or another person for any 15 matter. 16 151 Criminal Proceeds Confiscation Act 2002 not limited 17 Nothing in this Act limits the Criminal Proceeds Confiscation 18 Act 2002. 19 152 Delegation--chief executive 20 (1) The chief executive may delegate the chief executive's 21 powers, other than power under section 149, to an 22 appropriately qualified public service employee. 23 (2) In subsection (1)-- 24 appropriately qualified includes having the qualifications, 25 experience or standing appropriate to exercise the power. 26 Example of standing-- 27 the level at which a person is employed within the department 28 Page 105

 


 

Commercial Agents Bill 2010 Part 10 General [s 153] 153 Approved forms 1 The chief executive may approve forms for use under this Act. 2 154 Review of Act 3 (1) The Minister must ensure the operation of this Act is 4 reviewed. 5 (2) The review must start within 3 years after the commencement 6 of this section. 7 (3) The Minister must table in the Legislative Assembly a report 8 on the outcome of the review as soon as practicable after the 9 review is finished. 10 155 Regulation-making power 11 (1) The Governor in Council may make regulations under this 12 Act. 13 (2) Without limiting subsection (1), a regulation may be made 14 about the following-- 15 (a) fees, including the refunding of fees payable under this 16 Act; 17 (b) the rate of commission that may be charged for 18 transactions by licensees; 19 (c) imposing a penalty for a contravention of a regulation or 20 the code of conduct of not more than 20 penalty units; 21 (d) imposing limits on out-of-pocket expenses incurred in 22 the performance of activities under a licence; 23 (e) the keeping of records, including the form in which a 24 record is kept; 25 (f) the keeping of receipts and evidence of expenditure; 26 (g) the period a document required to be kept under this Act 27 is to be kept. 28 Page 106

 


 

Commercial Agents Bill 2010 Part 11 Transitional provisions [s 156] Part 11 Transitional provisions 1 156 Definitions for pt 11 2 In this part-- 3 commencement means the day this section commences. 4 existing licence means a property agents and motor dealers 5 licence (commercial agent) under the repealed Act. 6 existing registration certificate means a registration 7 certificate as a commercial subagent under the repealed Act. 8 157 Existing licences 9 (1) This section applies to a person who, immediately before the 10 commencement, held an existing licence. 11 (2) The person, on the commencement, is taken to be the holder 12 of a commercial agent licence (the transitioned licence). 13 (3) If the existing licence held by the person immediately before 14 the commencement was subject to a condition (the current 15 condition), the transitioned licence is also taken to be subject 16 to a condition in the same terms, so far as practicable, as the 17 current condition. 18 (4) A transitioned licence expires on the day it would have 19 expired under the repealed Act, unless it is sooner cancelled. 20 (5) The chief executive may deal with the transitioned licence as 21 if it were a licence issued under this Act. 22 Example of dealing with a transitioned licence under this Act-- 23 the chief executive amending the conditions of the transitioned licence 24 under section 44 25 158 Existing registration certificates 26 (1) This section applies to a person who, immediately before the 27 commencement, held an existing registration certificate under 28 the repealed Act. 29 Page 107

 


 

Commercial Agents Bill 2010 Part 11 Transitional provisions [s 159] (2) The person, on the commencement, is taken to be the holder 1 of a registration certificate as a commercial subagent (the 2 transitioned registration certificate). 3 (3) If the existing registration certificate held by the person 4 immediately before the commencement was subject to a 5 condition (the current condition), the transitioned registration 6 certificate is also taken to be subject to a condition in the same 7 terms, so far as practicable, as the current condition. 8 (4) A transitioned registration certificate expires on the day it 9 would have expired under the repealed Act, unless it is sooner 10 cancelled. 11 (5) The chief executive may deal with a transitioned registration 12 certificate as if it were a registration certificate issued under 13 this Act. 14 Example of dealing with the transitioned registration certificate under this 15 Act-- 16 the chief executive amending the conditions of the transitioned 17 registration certificate under section 101 18 159 Existing applications 19 (1) This section applies to the following applications made under 20 the repealed Act but not decided before the commencement-- 21 (a) an application for the issue of an existing licence or 22 existing registration certificate; 23 (b) an application for the renewal of an existing licence or 24 existing registration certificate; 25 (c) an application for the restoration of an existing licence 26 or existing registration certificate; 27 (d) an application about appointing a nominated person 28 mentioned in the repealed Act, section 64(3) or 65(4) as 29 a licensee's substitute licensee for an existing licence; 30 (e) an application about amending an existing licence or 31 existing registration certificate. 32 Page 108

 


 

Commercial Agents Bill 2010 Part 11 Transitional provisions [s 160] (2) The application must be decided under this Act and the 1 provisions of this Act, relevant to the application, apply to the 2 application. 3 (3) However, the provisions of this Act dealing with making the 4 application in the approved form and paying an application 5 fee do not apply to the application. 6 (4) If the application is about the issue, renewal or restoration of 7 an existing licence, the application is taken to be about the 8 issue, renewal or restoration of a commercial agent licence. 9 (5) If the application is about the issue, renewal or restoration of 10 an existing registration certificate, the application is taken to 11 be about the issue, renewal or restoration of a registration 12 certificate. 13 (6) If an application is about the renewal or restoration of an 14 existing licence, the licence is taken to continue in force from 15 the day that it would, apart from this section, have expired 16 until the application for renewal or restoration is-- 17 (a) decided under this Act; or 18 (b) withdrawn. 19 (7) If an application is about the renewal or restoration of an 20 existing registration certificate, the certificate is taken to 21 continue in force from the day that it would, apart from this 22 section, have expired until the application for renewal or 23 restoration is-- 24 (a) decided under this Act; or 25 (b) withdrawn. 26 160 Restoration of expired existing licences 27 (1) This section applies if a person's existing licence expired 28 within 3 months before the commencement. 29 (2) The person may apply under section 35, for restoration of the 30 existing licence as if the existing licence were a licence issued 31 under this Act. 32 Page 109

 


 

Commercial Agents Bill 2010 Part 11 Transitional provisions [s 161] Note-- 1 Section 35(2)(a) requires that an application for restoration be made 2 within 3 months after the expiry. 3 (3) To remove any doubt, it is declared that section 37 applies to 4 the existing licence. 5 161 Restoration of expired existing registration certificates 6 (1) This section applies if a person's existing registration 7 certificate expired within 3 months before the 8 commencement. 9 (2) The person may apply under section 97, for restoration of the 10 existing registration certificate as if the existing registration 11 certificate were a registration certificate issued under this Act. 12 Note-- 13 Section 97(2)(a) requires that an application for restoration be made 14 within 3 months after the expiry. 15 (3) To remove any doubt, it is declared that section 99 applies to 16 the existing registration certificate. 17 162 Previous refusals of applications 18 (1) This section applies to a person who made an application for 19 the issue of an existing licence or existing registration 20 certificate under the repealed Act and the application was 21 refused before the commencement. 22 (2) The person can not make an application for a licence or 23 registration certificate under this Act-- 24 (a) for 3 months after the day the chief executive gave the 25 person an information notice for the refusal; or 26 (b) if the applicant applies to QCAT to review the chief 27 executive's decision and the decision is confirmed, for 3 28 months after the day the decision is confirmed. 29 (3) This section does not apply to a person if-- 30 (a) the person is a corporation; and 31 Page 110

 


 

Commercial Agents Bill 2010 Part 11 Transitional provisions [s 163] (b) the person satisfies the chief executive that, because of a 1 genuine sale-- 2 (i) no person who was a shareholder of, or held a 3 beneficial interest in, the corporation when the 4 refused application was made is a shareholder of, 5 or holds a beneficial interest in, the corporation; 6 and 7 (ii) no person who was in a position to control or 8 influence the affairs of the corporation when the 9 refused application was made is in a position to 10 control or influence the affairs of the corporation. 11 163 Deactivated existing licences 12 (1) Subsection (2) applies to an existing licence that, immediately 13 before the commencement, was deactivated under the 14 repealed Act. 15 (2) The existing licence continues to be deactivated under this Act 16 and section 47 applies to the licence as if the licence were a 17 commercial agent licence deactivated under this Act. 18 (3) A request to deactivate an existing licence, made under the 19 repealed Act and not decided before the commencement, must 20 be decided under this Act and section 47 applies to the 21 request. 22 164 Suspended existing licences and existing registration 23 certificates 24 (1) This section applies to an existing licence or existing 25 registration certificate that was, immediately before the 26 commencement, suspended under the repealed Act. 27 (2) The existing licence or existing registration certificate 28 continues to be suspended under this Act. 29 (3) The provisions of this Act relating to the suspension of a 30 commercial agent licence apply to the existing licence as if 31 the existing licence were a commercial agent licence under 32 this Act. 33 Page 111

 


 

Commercial Agents Bill 2010 Part 11 Transitional provisions [s 165] (4) The provisions of this Act relating to the suspension of a 1 registration certificate apply to the existing registration 2 certificate as if the existing registration certificate were a 3 certificate of registration under this Act. 4 165 Existing appointments 5 (1) An engagement or appointment or an agreement to act as a 6 commercial agent under the repealed Act that is in force 7 immediately before the commencement and complies with the 8 repealed Act, continues to be a valid appointment under this 9 Act according to its terms. 10 (2) An appointment, under the repealed Act, by the chief 11 executive of a nominated person mentioned in the repealed 12 Act, section 64(3) or 65(4) as a licensee's substitute licensee 13 that is in force immediately before the commencement 14 continues to be a valid appointment under this Act according 15 to its terms. 16 166 Disciplinary action relating to pre-commencement 17 conduct 18 (1) If, before the commencement, a ground existed for starting 19 disciplinary action against a person under the repealed Act, 20 disciplinary action may be taken against the person on that 21 ground under this Act as if the ground were a ground for 22 starting disciplinary proceedings under this Act. 23 (2) If, before the commencement, QCAT had started, but not 24 finished, disciplinary action under the repealed Act, the action 25 may be finished under the repealed Act as if that Act had not 26 been repealed. 27 167 Continuation of reviews under the repealed Act 28 (1) Subsection (2) applies if-- 29 (a) a person applied to QCAT, under the repealed Act, 30 section 501 for a review of a decision of the chief 31 executive; and 32 Page 112

 


 

Commercial Agents Bill 2010 Part 11 Transitional provisions [s 168] (b) the review had not been decided before the 1 commencement. 2 (2) QCAT may hear, or continue to hear, and decide the review 3 under the repealed Act as if that Act had not been repealed. 4 (3) Subsections (4) and (5) apply if-- 5 (a) a person could have applied, under the repealed Act, 6 section 501 for a review of a decision of the chief 7 executive; but 8 (b) the person had not applied before the commencement. 9 (4) The person may apply for a review of the decision under the 10 repealed Act as if that Act had not been repealed. 11 (5) QCAT may hear and decide the review under the repealed Act 12 as if that Act had not been repealed. 13 168 Injunctions relating to pre-commencement conduct 14 (1) Subsections (2) to (5) apply to an injunction granted by the 15 District Court under the repealed Act and in force 16 immediately before the commencement. 17 (2) The injunction continues to be a valid injunction under this 18 Act according to its terms. 19 (3) The provisions of this Act relating to injunctions apply to the 20 injunction. 21 (4) If the injunction was granted against a person to whom section 22 157 applies and relates to the person's existing licence, from 23 the commencement, the injunction is taken to relate to the 24 person's transitioned licence under section 157(2). 25 (5) If the injunction was granted against a person to whom section 26 158 applies and relates to the person's existing registration 27 certificate, from the commencement, the injunction is taken to 28 relate to the person's transitioned registration certificate under 29 section 158(2). 30 (6) In addition to section 127, the District Court may also grant an 31 injunction if the court is satisfied that a person has, before the 32 commencement, engaged in conduct that constituted-- 33 Page 113

 


 

Commercial Agents Bill 2010 Part 11 Transitional provisions [s 169] (a) a contravention of the repealed Act or the repealed code 1 of conduct; or 2 (b) an attempt to contravene the repealed Act or the 3 repealed code of conduct; or 4 (c) aiding, abetting, counselling or procuring a person to 5 contravene the repealed Act or the repealed code of 6 conduct; or 7 (d) inducing or attempting to induce, whether by threats, 8 promises or otherwise, a person to contravene the 9 repealed Act or the repealed code of conduct; or 10 (e) being in any way, directly or indirectly, knowingly 11 concerned in, or party to, the contravention by a person 12 of the repealed Act or the repealed code of conduct; or 13 (f) conspiring with others to contravene the repealed Act or 14 the repealed code of conduct. 15 (7) Subsection (6) does not limit section 127. 16 169 Undertakings relating to pre-commencement conduct 17 (1) Subsections (2) to (5) apply to an undertaking given by a 18 person to the chief executive under the repealed Act. 19 (2) The undertaking continues to be a valid undertaking under 20 this Act according to its terms. 21 (3) The provisions of this Act relating to undertakings apply to 22 the undertaking. 23 (4) If the undertaking was given by a person to whom section 157 24 applies and relates to the person's existing licence, from the 25 commencement, the undertaking is taken to relate to the 26 person's transitioned licence under section 157(2). 27 (5) If the undertaking was given by a person to whom section 158 28 applies and relates to the person's existing registration 29 certificate, from the commencement, the undertaking is taken 30 to relate to the person's transitioned registration certificate 31 under section 158(2). 32 Page 114

 


 

Commercial Agents Bill 2010 Part 11 Transitional provisions [s 170] (6) If the chief executive reasonably believes a person has, before 1 the commencement, contravened or been involved in a 2 contravention of the repealed Act or the repealed code of 3 conduct, section 131 of this Act applies as if-- 4 (a) a reference in that section to this Act were a reference to 5 the repealed Act; and 6 (b) a reference in that section to the code of conduct were a 7 reference to the repealed code of conduct. 8 (7) If, before the commencement, the chief executive applied to 9 the District Court for an order under the repealed Act, section 10 571 and the District Court has not decided the application, the 11 application may be dealt with under the repealed Act as if that 12 Act had not been repealed. 13 170 Proceedings for particular offences under repealed Act 14 (1) This section applies if a person is alleged to have committed 15 an offence against a provision of chapter 10 of the repealed 16 Act before the commencement. 17 (2) Without limiting the Acts Interpretation Act 1954, section 20, 18 proceedings for the offence may be started or continued, and a 19 court may hear and decide the proceedings, as if the repealed 20 Act had not been repealed. 21 (3) Subsection (2) applies despite the Criminal Code, section 11. 22 171 Existing delegations 23 On the commencement, a delegation of power made by the 24 chief executive under the repealed Act, section 597, continues 25 to have effect according to its terms as a delegation made 26 under section 152 of the power under this Act that is 27 equivalent or substantially similar to the delegated power 28 under the repealed Act. 29 172 Existing registers 30 (1) On the commencement-- 31 Page 115

 


 

Commercial Agents Bill 2010 Part 12 Minor and consequential amendments [s 173] (a) the licence register kept under the repealed Act is taken 1 to be the licence register under this Act; and 2 (b) the registration certificate register kept under the 3 repealed Act is taken to be the registration certificate 4 register under this Act; and 5 (c) the register kept under section 572 of the repealed Act is 6 taken to be the register of undertakings. 7 (2) In this section-- 8 register of undertakings means the register kept under section 9 135. 10 173 Existing fines and fees 11 (1) A fine ordered to be paid by QCAT or the former tribunal to 12 the chief executive under the repealed Act that has not been 13 paid before the commencement may be recovered after the 14 commencement as a debt owing to the chief executive in a 15 court with jurisdiction to recover debts up to the amount of the 16 fine. 17 (2) A fee incurred under the repealed Act that has not been paid 18 before the commencement may be recovered after the 19 commencement as a debt owing to the chief executive in a 20 court with jurisdiction to recover debts up to the amount of the 21 fee. 22 Part 12 Minor and consequential 23 amendments 24 174 Minor and consequential amendments 25 Schedule 1 amends the Acts it mentions. 26 Page 116

 


 

Commercial Agents Bill 2010 Schedule 1 Schedule 1 Minor and consequential 1 amendments 2 section 174 3 Part 1 Amendments of this Act 4 1 Long title, from `practices'-- 5 omit, insert-- 6 `practices'. 7 2 Section 8, `schedule 3'-- 8 omit, insert-- 9 `schedule 2'. 10 3 Section 119, `schedule 2'-- 11 omit, insert-- 12 `schedule 1'. 13 4 Schedule 2-- 14 renumber as schedule 1. 15 5 Schedule 3-- 16 renumber as schedule 2. 17 Page 117

 


 

Commercial Agents Bill 2010 Schedule 1 Part 2 Other amendments 1 Fire and Rescue Service Act 1990 2 1 Section 126(1), `(licensed as such under the Property 3 Agents and Motor Dealers Act 2000)'-- 4 omit, insert-- 5 `within the meaning of the Commercial Agents Act 2010'. 6 2 Section 126(1), `347'-- 7 omit, insert-- 8 `65'. 9 State Penalties Enforcement Act 1999 10 1 Schedule 2, definition commercial agent, `Property 11 Agents and Motor Dealers Act 2000'-- 12 omit, insert-- 13 `Commercial Agents Act 2010'. 14 Page 118

 


 

Commercial Agents Bill 2010 Schedule 2 Schedule 2 Decisions subject to review 1 section 119 2 section 17(2) (Chief executive must consider suitability of applicants and licensees) section 25(1) (Chief executive may issue or refuse to issue licence) section 28(1) (Licence--conditions) section 33(1) (Chief executive may renew or refuse to renew licence) section 36(1) (Chief executive may restore or refuse to restore licence) section 41(1) (Chief executive may appoint or refuse to appoint substitute licensee) section 44(1) (Amendment of licence conditions) section 48(2) (Immediate suspension) section 86(2) (Chief executive must consider suitability of applicants) section 92(1) (Chief executive may issue or refuse to issue registration certificate) section 93(1) (Registration certificate--conditions) section 95(1) (Chief executive may renew or refuse to renew registration certificate) section 98(1) (Chief executive may restore or refuse to restore registration certificate) section 101(1) (Amendment of registration certificate conditions) section 104(2) (Immediate suspension) Page 119

 


 

Commercial Agents Bill 2010 Schedule 3 Schedule 3 Dictionary 1 section 8 2 Administration Act means the Agents Financial 3 Administration Act 2010. 4 Agents Act means-- 5 (a) the Motor Dealers and Chattel Auctioneers Act 2010; or 6 (b) the Property Agents Act 2010. 7 approved form means a form approved under section 153. 8 arrangement includes agreement, promise, scheme, 9 transaction (with or without consideration), understanding 10 and undertaking (whether express or implied). 11 associate, of a person, means-- 12 (a) a spouse, parent, brother, sister or child of the person; or 13 (b) a child of the person's spouse. 14 audit period see the Administration Act, section 30. 15 audit report see the Administration Act, section 30. 16 business address, of a licensee, see section 12(1)(b). 17 business associate, of an applicant for a licence or a licensee, 18 means a person with whom the applicant or licensee carries 19 on, or intends carrying on, business under a licence. 20 claim fund means the claim fund established under the 21 Administration Act, section 76. 22 code of conduct means the code of conduct prescribed under 23 section 66. 24 commencement, for part 11, see section 156. 25 commercial agent licence means a licence under section 25. 26 commercial agent see section 55(1). 27 Page 120

 


 

Commercial Agents Bill 2010 Schedule 3 commercial subagent-- 1 (a) generally, means a person who holds a registration 2 certificate as a commercial subagent; or 3 (b) for part 7, see section 115. 4 conviction includes a plea of guilty or a finding of guilt by a 5 court, but does not include a plea of guilty or a finding of guilt 6 by a court if no conviction is recorded by the court. 7 corresponding law means a law of another State or New 8 Zealand that provides for the same matter as this Act or a 9 provision of this Act. 10 criminal history, of a person, means the person's criminal 11 history as defined under the Criminal Law (Rehabilitation of 12 Offenders) Act 1986, other than a conviction-- 13 (a) for which the rehabilitation period under the Criminal 14 Law (Rehabilitation of Offenders) Act 1986 has expired 15 under that Act; and 16 (b) that is not revived as prescribed by section 11 of that 17 Act. 18 criminal history costs requirement see-- 19 (a) generally for an applicant or licensee--section 21(2); or 20 (b) for an applicant for, or for the renewal or restoration of, 21 registration as a commercial subagent--section 88(2). 22 employ includes-- 23 (a) engage on a contract for services or commission; and 24 (b) use the services of, whether or not for reward. 25 employed licensee means a licensee who performs the 26 activities of a licensee as the employee of someone else. 27 executive officer, for a corporation, means any person, by 28 whatever name called and whether or not the person is a 29 director of the corporation, who is concerned, or takes part, in 30 the management of the corporation. 31 existing licence see section 156. 32 existing registration certificate, for part 11, see section 156. 33 Page 121

 


 

Commercial Agents Bill 2010 Schedule 3 financial loss, for part 6, see section 112. 1 former licensee-- 2 (a) generally, means a person who held a licence under this 3 or the repealed Act; and 4 (b) for part 7, see section 115. 5 former subagent see section 97(1). 6 former tribunal means the tribunal under the repealed 7 Commercial and Consumer Tribunal Act 2003. 8 fund means the claim fund. 9 holder-- 10 (a) of a commercial agent licence, means the person in 11 whose name the licence is issued; or 12 (b) of a registration certificate, means the person in whose 13 name the certificate is issued. 14 in charge see section 9. 15 information notice means a notice complying with the QCAT 16 Act, section 157(2). 17 insolvent under administration means a person who is 18 insolvent under administration under the Corporations Act, 19 section 9. 20 inspector means a person whose appointment as an inspector 21 is continued under the Property Agents Act 2010, section 292. 22 licence means a commercial agent licence. 23 licence register see section 53(1). 24 licensed, in relation to a person, means licensed under this 25 Act. 26 licensee-- 27 (a) generally, means the holder of a commercial agent 28 licence that is in force; or 29 (b) for part 6, see section 112; or 30 (c) for part 7, see section 115. 31 Page 122

 


 

Commercial Agents Bill 2010 Schedule 3 misleading includes deceptive. 1 official means-- 2 (a) the chief executive; or 3 (b) an inspector; or 4 (c) a public service employee. 5 principal licensee means a licensee that carries on business 6 under the licensee's licence on the licensee's own behalf. 7 registered office, of a commercial agent, see section 68. 8 registration certificate means a registration certificate issued 9 under section 92. 10 registration certificate register see section 109(1). 11 relevant person, for part 6, see section 112. 12 repealed Act means the repealed Property Agents and Motor 13 Dealers Act 2000. 14 repealed code of conduct means the code of conduct under 15 the repealed Property Agents and Motor Dealers 16 (Commercial Agency Practice Code of Conduct) Regulation 17 2001. 18 representation includes a statement, promise, publication and 19 other representation made in any way. 20 reward includes remuneration of any kind, including, for 21 example, any fee, commission or gain. 22 serious offence means any of the following offences 23 punishable by 3 or more years imprisonment-- 24 (a) an offence involving fraud or dishonesty; 25 (b) an offence involving the trafficking of drugs; 26 (c) an offence involving the use or threatened use of 27 violence; 28 (d) an offence of a sexual nature; 29 (e) extortion; 30 Page 123

 


 

Commercial Agents Bill 2010 Schedule 3 (f) arson; 1 (g) unlawful stalking. 2 trust account means a trust account kept under the 3 Administration Act. 4 State of Queensland 2010 Page 124

 


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