Module 2

CPPREP4003 - Access and interpret legislation in real estate (Release 1)

Reading Guide
Table of Contents
What is Law? .................................................................................................................... 4
The Legislative Framework (Three Sources of Law) ............................................................ 4
Common Law ........................................................................................................................... 4
Contract Law ............................................................................................................................ 6
Equity Law ............................................................................................................................... 6
Statute Law.............................................................................................................................. 7
The Australian Legal System ............................................................................................. 8
History of Law in Australia .............................................................................................. 10
Federation and the Australian Constitution ..................................................................... 11
Federal (Commonwealth) Legislative Powers .......................................................................... 11
State / Territory Legislative Powers ........................................................................................ 12
Legislation - Statutes - Acts of Parliament (Components of Legislation) .................................... 13
Delegated / Subordinate Legislation ....................................................................................... 13
Delegated Authorities (Regulators)...............................................................................................................15

By-Laws ................................................................................................................................. 15
Acts and Subordinate Legislation in the Real Estate Industry ........................................... 16
How Statute Legislation is Created .................................................................................. 16
1. Policy Development ....................................................................................................... 16
2. Draft Bill stage ............................................................................................................... 16
3. Parliamentary Processes ................................................................................................ 17
4. Royal Assent .................................................................................................................. 17
5. Commencement ............................................................................................................ 18
Access to Legislation ....................................................................................................... 18
Version Currency of Legislation ............................................................................................... 19
Interpreting Legislation .................................................................................................. 19
Structure of Legislation........................................................................................................... 21
Interrelationship between pieces of legislation ....................................................................... 21
Key principles for reading and interpreting legislation ............................................................. 22
Internal/Intrinsic Aids ....................................................................................................................................22
External/Extrinsic Aids...................................................................................................................................22

Language conventions and expressions................................................................................... 23

Reading Rules......................................................................................................................... 24
Relevant Legislation for the Real Estate Industry ............................................................. 24
 Commonwealth Legislation .................................................................................................... 24
Competition and Consumer Act 2010, especially .........................................................................................24
Foreign Acquisitions and Takeovers Act 1975 and Regulation 1989 ............................................................25

State Legislation ..................................................................................................................... 25

New South Wales ..........................................................................................................................................25

Personal Responsibility........................................................................................................... 25
Discrepancies in application of legislation. ...................................................................................................25

Other Relevant Legislation...................................................................................................... 26

Real Estate Codes of Conduct .......................................................................................... 28
Conclusion ...................................................................................................................... 28
What is Law?

Law is a system of rules a society sets to maintain order and protect harm to persons and property.
Law is ancient, with some scholars suggesting that formal law dates back to the Code of Hammurabi,
written by an ancient Babylonian king around 1760 BC.

It is highly probable that the Code of Hammurabi influenced other legal codes in the middle eastern
region. Many of these codes spread into neighbouring regions as trade routes and physical
communications expanded. Gradually, the codes developed into legal systems which influenced
European law, so the widely used common law system owes some credit to the Code of Hammurabi.

Today, most countries have tens or hundreds of thousands of pages of law, including law of contract,
law of property, law of trusts, law of tort, criminal law, constitutional law, administrative law, and
international law.

Each of these sets the rules for a distinct area of human activity. Without laws, there is lawlessness,
which historically has led to a general breakdown in society, sometimes to the point of a near-standstill
in the economy.

Today, we live in a highly developed and civilised society. Consequently, the range of activities, and
the complexity of life is such that the conduct of individuals and corporations requires regulation to
create and maintain order.

The motivation to regulate behaviour comes from political, economic, social, moral and religious
sources.

The laws and regulations that provide the system that regulate people’s conduct in today’s society
have developed over time, and have been based upon historical norms (Common Law) combined with
developed legislation (Statute Law).

The Legislative Framework (Three Sources of Law)

Common Law
Common law forms the basis of the legal system in England and other English speaking countries,
especially those that were former British colonies. It is that which has evolved over the years as a
result of judgements made in the various Common Law Courts of England over the years and for this
reason it is also known as “Case Law”

In primitive societies, traditional customs tend to govern tribal behaviour, and set the standards for
the behavioural norms of that particular group of people, tribe or area, which effectively becomes the
‘common law’ for those people.

Over time, as society has developed, the tribal customs have formulated, developed and evolved and
been administrated by judges in determining the outcome of legal disputes.

Therefore, Common Law was originally based on unwritten common or tribal customs - it was really
the common sense of the community, formulated by our forefathers.
The basis of Common law, as we now know it, was established in England by King Henry II in the 12th
Century. He centralised administration of justice in England by sending judges on circuits throughout
the country (circuit judges), which resulted in the gradual development of a common set of principles,
applicable nationwide, and administered by the King’s Court.

Gradually, 3 main court systems were established:

• The Court of the Kings Bench, which heard matters in which the Crown was a party, including
criminal prosecutions
• The Court of Exchequer, which originally dealt with disputes involving the revenue and exchequer
• The Court of Common Pleas, which dealt with litigation between individuals.

These different courts established a system of law that could supersede or over-ride the judgments of
local courts. Also, in civil matters between individuals, common law was used to compensate those
people who had had wrongful acts, known as torts, committed against them.

Common law is law created and refined by judges, who have the authority and duty to make law by
creating precedent. Judges will analyse, make decisions and recommendations about the cases
currently before them by referring back to decisions made in previous cases that may have been heard
recently, or sometimes decades previously. They will also take into account decisions made in other
“Common Law” countries.

Judges also compare the circumstances of their current case and relate it to previous cases when
writing their opinions and decisions or giving direction to juries (in civil matters). Their decisions then
become the basis or ‘precedent’ for future cases to be heard by other judges in the future. In future
cases, when parties disagree on what the law is, an idealised common law court looks to past
precedents and decisions made by relevant courts in other jurisdictions.

If a similar case has been resolved in the past, the court is bound to follow the reasoning used in the
prior decision. The strength of the similarity among the cases strengthens the reasoning based on
them.

If, however, the court finds that the current case is fundamentally distinct from all previous cases, it
will decide as a "matter of first impression". Thereafter, the new decision becomes the precedent, and
will bind future court rulings.

Decisions made in one court are binding on lower courts, but decisions made in lower courts may be
overturned by higher courts (under the appeals system).

The development of Commercial Law emerged in the 15th and 16th Centuries, followed by the
principles of Tort and Contract Law.

Until the 19th Century, Common Law, or Case law was the main source of law. Since the, Statute Law
has become the dominant source of law as in a modern society there is a greater need for government
intervention in the lives of individuals, and to regulate the conduct of society in general.

Common law, because it is based upon historic court judgements, is slow to change, and has proven
to be too slow to meet the needs of today’s society. Additionally, as it is judge made law, and based
on previous historical events, situations or disputes, and is difficult to translate to other or more
general circumstances of modern life and commercial transactions.

Statute Law is generally aimed at the future, for active intervention in our lives. Statute law can amend
or repeal the common law.
However, sometimes the common law leads society for example, in Mabo. When this happens it is
called “positive law”.

Where there is conflict between common law and statute law, the common law is generally inferior,
and statute law will prevail. But on the other hand, often statute law is open to interpretation in
different ways, and in such situations, common law principles are applied and new common law
develops as courts interpret and apply statutes.

Contract Law
Contract law encompasses any laws or regulations directed toward enforcing certain promises.

We all make contracts almost every day. Whenever we buy a coffee, do the grocery shopping, fill the
car up with petrol or purchase a ticket for public transport we are entering into a contract. We are
often unaware we are contracting (or at least don't turn our minds to that fact) and in most cases it is
unnecessary to do so; most contracts are made and performed instantly (or almost instantly) without
any problems arising.

However, should something go wrong (eg, one party fails to perform (eg, deliver goods) or goods
delivered or services performed are defective in some way), it may become important to assess when
and whether a valid contract was entered into, the nature of its terms and obligations and what, if
any, remedies may be available in the event of a breach. This is how we buy and sell houses on a legally
binding written contract.

In Australia contract law is primarily governed by the 'common law', but increasingly statutes are
supplementing the common law of contract - most notably, but certainly not exclusively, in the area
of consumer protection.

Equity Law
Equity is primarily concerned with “fairness” or natural justice.

To some extent, it evolved out of church law and therefore has taken the high moral ground. It is
founded on distinct principles but claiming superiority to the common law because of its superior
sanctity inherent in those principles.

Originally administered by the Court of Chancery it balanced administration of justice through the
established courts.

Equity looks at aspects such as ‘good faith’ and ‘conscience’ and has therefore been the key source
of law in determining cases based on the rights of individuals, wills and trusts, and other fields.

Equity and Common Law are similar in being both judge-made law.
An example of how Equity and Common Law might differ is this:

Example
Bob goes onto John’s land and chops down a tree which overhangs his fence. John takes Bob to
court and the case is dealt with under common law.

However, if John had heard that Bob was planning to chop down his tree, he could apply to the
court to prevent Bob from chopping down the tree. That case would be heard under the principles
of equity.

Statute Law
Statutes are laws that have been enacted by a legislative body with the powers to create law, and are
generally aimed at the future, for active intervention in our lives.

Often also known as statutory law, statute law is written law set down by a legislature. Statutes are
enacted in response to a perceived need to clarify the functioning of government, improve civil order,
to formalise existing law, or to ensure that a group of people act and behave in a certain way (as in
the case of real state legislation).

It may also be used to permit or restrict a company (or other groups of people) from doing something,
or to obtain special treatment.

Statutes may be enacted by the national and state legislatures or by local or statutory authorities.
Typically, the statutes of lower jurisdictions are subordinate to the law of higher, and the higher
legislative body’s statute takes precedence.

Statute Law includes both direct legislations passed by Parliament (Acts) and delegated legislation
such as by-laws and regulations, rules and guidelines.

If there is a conflict between the three forms of Law, statute law is usually the superior over common
law and equity.

When legislation is enacted and brought into effect, it is considered ‘untested’. This is, no action will
have been brought to court under that law, and therefore it may be subject to different interpretations
depending upon one’s viewpoint.

When this happens, the judge will then look at the reasoning behind the particular law, and also apply
the principles of common law when coming to a decision.

Considerations to be taken into account will include:

• Has a situation like this occurred before?
• What happened then?
• How does it apply now?
• What is this law trying to achieve?

Over a period of time, the legislation is interpreted in court cases (tested) and when the legal system
is reasonably assured of what the legislation means, as a result of the determination of cases, then
the law is “certain” or “settled”.
 Example
The statutory definition of site value for property tax purposes rating values is certain or settled law
because its meaning has been explored and determined by a long line of cases. Case law on
interpretation of one section of an Act may convert a couple of lines (or even words) into a detailed
explanation. For example, the willing buyer / willing seller theory of market value (Spencer’s case).

The property market is a complex market that is affected by many issues, but principally supply and
demand, which create the conditions under which the property will achieve market value when
sold, as long as normal business considerations are made. Most people have some concept of what
market value means. Expressions such as "the going price" or "market price" are common terms.
The laws of property however, require a much more concise definition especially when property is
compulsorily acquired and fair compensation must be paid.

The legal case, Spencer vs. the Commonwealth, set the precedent for the definition of market value
in Australia.

Spencer owned about 6 acres of land in Fremantle, WA. The Commonwealth Govt. acquired the
land to build a fort in 1905. Spencer sought justice from the High Court of Australia for "fair
compensation". To determine the market value of the land, the Court had to examine the concept
of a willing buyer and a willing seller on a specific date. Part of the High Court judgement, which
explains this concept, was:

“…. we can conclude that market value is determined by a willing buyer and a willing seller, who are
not so anxious to either buy or sell property that they overlook any normal business considerations
and are aware of the land and all its circumstances which might affect its value, either [way],
including its situation, character, quality, proximity to conveniences or inconveniences, its
surrounding features, the … demand for land and the likelihood … of a rise or fall for what reason
so ever in the amount which one would otherwise be willing to fix as the value of the property".

Market value once stated only refers to the specific point in time when a transaction takes place. In
keeping with the forces of supply and demand, fluctuations in the market will occur and depending
on the circumstances at the time, a sale price may be more or less than the notional market price.

Well promoted properties will produce more buyers and for that reason can achieve above market
price.

The Australian Legal System

The basis for the Australian legal system lies in the English legal system. The UK Parliament had the
power to legislate in its colonies and establish governments in colonies. As a result, Australian law
reflects its English origins.

However, the British regarded the Aboriginal peoples as being too primitive to have lawful possession
of the Australian continent and chose to treat “New Holland” as terra nullius, an uninhabited land
open for settlement.

Since the Privy Council had held that uninhabited lands settled by English subjects would be governed
by the laws of England, there was no place for Aboriginal native title to land, or for recognition of
Aboriginal custom or law.
English law was clarified by the Australian Courts Act 1828, which provided that all laws and statutes
in force in England at the date of enactment should be applied in the courts of New South Wales and
Van Diemen's Land (Tasmania) so far as they were applicable. Since Queensland and Victoria were
originally part of New South Wales, the same date applies in those States for the reception of English
law. South Australia and Western Australia adopted a different date.

The earliest civil and criminal courts established in New South Wales were basic and military in
character, although adaptive to the different situation in the new colony. Although legality was not
always observed, the courts limited the powers of the Governor, and the law of the colony was at
times more egalitarian than in Britain.

By 1824, a court system based on the English model had been established through Acts of the British
Parliament. The New South Wales Act 1823 provided for the establishment of a Supreme Court with
the power to deal with all criminal and civil matters "as fully and amply as Her Majesty's Court of King's
Bench, Common Pleas and Exchequer at Westminster".

Inferior courts were also established, including courts of General or Quarter Sessions, and Courts of
Requests.

Representative government emerged in the 1840s and 1850s, and a considerable measure of
autonomy was given to local legislatures in the second half of the nineteenth century.

Colonial Parliaments introduced certain reforms such as secret ballots and female suffrage, which
were not to occur in Britain until many years later.

Nevertheless, Acts of the United Kingdom Parliament extending to the colonies could override
contrary colonial legislation and new doctrines of English common law continued to be treated as
representing the common law of Australia.
Under the Australian legal system all constitutional power is derived from the UK Parliament and
Australian institutions of government are modelled on those of Britain.

One major difference is that Britain has a unitary form of government; Australia has a federal system
of government with Commonwealth, State and Territory governments.

The major similarity is that Australian law, like British law, consists of statutes, delegated legislation
and common law.

However, as a result of the Constitution of Australia, Australian statute law includes federal
(commonwealth) laws enacted by the Parliament of Australia, and laws enacted by the Parliaments of
the Australian states and territories.

The most important law of Australia is the Constitution of Australia, which describes Australia's system
of constitutional monarchy, and forms the basis for the government of Australia.

All of the States and territories of Australia that are self-governing are separate jurisdictions and have
their own system of courts and parliaments. The systems of laws in each State are influential on each
other, but not binding. Laws passed by the Parliament of Australia apply to the whole of Australia.

The High Court of Australia has general jurisdiction over the State Supreme Courts. This ensures there
is a single uniform Australian common law.
In Australia, only a Parliament may make legislation or authorise the making of legislation. However,
because judges have the role of applying the laws of interpretation, if there is a dispute about the
meaning of legislation, the judges decide the dispute.

There has been little borrowing of other overseas statute law, despite the fact that some sections in
the Australian Constitution are modelled on the Constitution of the USA.

History of Law in Australia

Until the 13th Century in England, Laws were made by the King and his advisers. In 1215, King John
put his seal to the Magna Carta (Great Charter) and this document has formed the basis for the
establishment of many legal systems around the world.

Subsequent issues and drafts of the Magna Carta were produced over the following centuries, but it
did lead to the establishment of a parliament, and later the formation of two assemblies:
• The Upper House (House of Lords) comprising the aristocracy and church dignitaries and;
• The Lower House (House of Commons) being the assembly of commoners and citizens.

In Australia today, we have the same format of government – the Senate and the House of
Representatives.

By 1708 it had been established that the Parliament, and not the King, had the supreme legislative
power, and that that power extended to both Britain and its Colonies.

Therefore, following colonisation in 1788 the principles of English Common Law and Equity applied in
NSW, however, they were not always suitable to the conditions and governance of a penal settlement.

The Australian Courts Act 1828 (UK) declared that: “...all laws, and statutes in force within the realm
of England… shall be applied in the administration of justice in the courts of NSW… so far as the same
can be applied”

In 1855, the New South Wales Constitution Act 1855 (UK) allowed the NSW Parliament the power to
legislate for the “…peace, order and good government of the colony”, but not to override any UK
Statutes or Common Law.

This was again confirmed in the Colonial Laws Validity Act 1865 (UK). Even the New South Wales Act,
The Constitution Act 1902 (NSW) (and similar statutes in other states) did not seek to over-ride any
UK Statutes or Common Law in place in NSW at that time.

It was not until the Imperial Acts Application Act 1969 (NSW) that the NSW state parliament started
to repeal ancient UK statutes and allow themselves the opportunity to modernise many English
Statutes. Other states have enacted similar legislation which allows them to repeal or modernise old
English laws.
Federation and the Australian Constitution
The Commonwealth of Australia came into existence in 1901 as a result of the Commonwealth of
Australia Constitution Act 1900 (UK). The six self-governing colonies became States within the
Australian Federation.

The Commonwealth can only make laws under the powers listed in the Constitution. Section 51 of the
Constitution deals with most (though not all) of the legislative powers of the Commonwealth
parliament:

There are 39 categories of legislation that may be enacted under s51 of the Constitution, which
effectively limit the powers of the commonwealth to legislate for the:

“…peace, order and good government of the Commonwealth… in respect to trade, taxation, defence,
banking, immigration, and external affairs…”

The Constitution is Australia’s fundamental law for the Commonwealth, but the States also have their
own Constitutions and legislative powers.

Whilst State Constitutions can be amended by state parliament, the Commonwealth’s Constitution
can only be amended by way of a referendum as laid down in the Constitution.

It has proved very difficult to amend the Constitution as it requires consistent consensus throughout
Australia.

Ministers of both State and Commonwealth governments make laws under statutes that permit or
require them to do so, but administrative law limits those powers to an extent. In the event of
inconsistencies between Commonwealth and State legislation on the same subjects, Commonwealth
Legislation is always superior.

Federal (Commonwealth) Legislative Powers

Section 51 of the Australian Constitution grants legislative powers to the Australian (Commonwealth)
Parliament. When the six Australian colonies joined together in Federation in 1901, they became the
original States and ceded some of their powers to the new Commonwealth Parliament.

Federation was intended to address problems caused by having separate colonies on the one island
continent. Section 51 therefore encompasses a group of ‘nationhood’ powers. The Commonwealth
Parliament only has the powers outlined in Section 51 of the Federal Constitution and cannot make
any other laws.
There are 39 subsections to section 51, each of which describes a head of power about which the
Parliament has the power to make laws. The most important heads of power in Commonwealth
legislation are:

• Trade and commerce with other countries, and among the States
• Foreign corporations, and trading or financial corporations formed within the limits of the
commonwealth
• External Affairs
• Taxation
• Military defence
• Quarantine
• Census and Statistics
• Currency

Powers not included in Section 51 are considered the responsibility of the States, unless there is
another grant of constitutional power (Section 52 and Section 90 of the Constitution prescribe some
additional powers).

Matters covered in Section 51 may be legislated on by the states, but the legislation will be ineffective
if inconsistent with or in a field 'covered by' Commonwealth legislation

The High Court of Australia has the jurisdiction to interpret the constitution. Many of the court's
interpretations have focused on section 51, cases arising out of disputes between the states and the
Commonwealth Parliament. The High Court of Australia can declare any Federal statute or law void if
it does not comply with Section 51.

Example
In 1955, Prime Minister Menzies passed the Communist Party Dissolution Act. That Act would have
enabled the government to declare any opponent a communist. That would have disqualified that
person from holding any official or government position and liable to imprisonment. The High Court
held that this was not a valid exercise of Commonwealth defence power and therefore void.

State / Territory Legislative Powers

State and Territory statutes are made by the State and Territory Parliaments under their Constitution.

For example, the New South Wales Constitution says: "The Legislature shall, subject to the provisions
of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare,
and good government of New South Wales in all cases whatsoever."

Their powers are protected by the Australian Constitution, and Commonwealth legislation only applies
to the states where permitted by the Constitution. All territories, on the other hand, are directly
subject to the Commonwealth government.

However, the Australian Capital Territory and the Northern Territory have been granted the delegated
authority by the Commonwealth to be self-governing. Australia’s external territories are governed
directly by the Commonwealth.

As Australia has a federal system, disputes arise from time to time about whether or not particular
Acts are actually within the legal jurisdiction of the Parliament which enacted them. Such disputes
between States and the Commonwealth are, resolved by the High Court of Australia in a process called
‘judicial review’. A Commonwealth Act overrides any State Act that is inconsistent with it.

Legislation - Statutes - Acts of Parliament (Components of Legislation)

“Legislation” refers to the Statutes or Acts of Parliament that have been made by the parliament,
whether State of Commonwealth under the powers that allows them to do so.

Parliaments make legislation or authorise the making of legislation by enacting an Act. This means the
Legislative Assembly passes a Bill for the Act and the Bill is given royal assent. On assent the Bill
becomes an Act.

All persons are required to take note of and comply with an Act. An Act binds everyone to whom a
provision in the act applies to, including people who are not Australian citizens

An Act is essentially a sequence of provisions containing statements and rules. What is achieved by
the Act depends on the interpretation of the Act's provisions.

Legislation may have its effect by:

• Directly deciding the matter or
• Authorising someone else, that is, delegating the power to someone else, to make a law about
the matter or decide the matter.

Legislation may incorporate another document by reference, whether or not the other document is
itself legislation.

Legislation may empower someone or some other body to create a subset of rules or regulations that
support the legislation, and that have the same effect as the law itself and form part of the law itself.

This is known as delegated or subordinate legislation. When we talk about ‘Legislation’ that also
includes all delegated or subordinate legislation.

The delegated ‘instrument’ may be legislative in character or it may be administrative in character.

The significance of its legislative or administrative character depends on the particular context of what
it is designed to achieve.

Delegated / Subordinate Legislation

An Act will frequently authorise delegated (or subordinate) legislation and the form that the delegated
legislation should take. The Act itself must delegate authority to a body or person to make the
subordinate legislation.

Delegated legislation (also referred to as subordinate legislation or secondary legislation) is law made
by an executive authority under powers given to them by primary legislation in order to implement
and administer the requirements of that primary legislation. So, it is law made by a person or body
other than the legislature but with the legislature's authority.

Delegated legislation is typically in the form of regulations, rules or executive instruments, but may be
known by different names in different States and Territories:
The following are all forms of Delegated Legislation:
• Regulations
• Rules
• Notifiable Guidelines
• Notices
• Orders
• Amendments
• By-Laws

Parliaments tend to limit their own activities to that of determining broad matters of policy, and not
the specifics of how to comply with the act.

Therefore, they will ‘delegate’ the responsibility of creating and providing rules and regulations to
support the statutes to an authorised body with specialist knowledge to be responsible for the
implementation, administration and procedures to be followed in order to comply with the Act.

Example:
In the ACT, the Territory Government has created and passed the Statute “The Agents Act 2003
(ACT)”. The body responsible for the administration and implementation of the Act is the Office of
Regulatory Services, part of the ACT Department of Commerce. The Office of Regulatory Services
has been delegated the authority to produce the Agents Regulation 2003, which determine how
the Act should be implemented and administered. The Act allows for the regulations to prescribe
‘Rules of Conduct’, which form a part of the Agents Regulations.

This system of delegating legislation to the regulatory body has certain advantages:
1. It allows detailed explanation of the requirements, which the Act may not have
2. It may include implementation guidelines and regulation which the legislation lacks.
3. It may clarify the legislation and show how it can be complied with.
4. It may show the penalties applicable for non-compliance with provisions in the act.
5. It is easier to revise and enact than a new Act of Parliament
6. It is simpler to alter in response to market, consumer or economic factors.

One of the problems with legislation is that it is written in a style which is unfamiliar to most people,
and is unclear and ambiguous to them. It then leaves the legislation open to interpretation by the
average person, and that may be the wrong interpretation. Subordinate legislation frequently
attempts to overcome this problem.

One disadvantage of having the regulations prepared by regulatory bodies is that the quantity of
delegated legislation has increased exponentially over recent years, and, as a result, there is a mass of
legal rules such as regulations, by-laws, etc.

There is nothing to say that there is one act – one regulation, as the table below illustrates.

The practical task of keeping up with new regulations is a difficult one for both lawyers and citizens.
In some cases, it is thought that too much law making power has been delegated to the regulatory
authorities, and that parliament has abrogated its responsibilities to the statutory authorities.
Delegated Authorities (Regulators)
These are the bodies that supervises a particular industry or business activity and who prepare and
authorise Real Estate Legislation;
• Queensland: Office of Fair Trading (Department of Employment, Economic Development and
Innovation)
• NSW: Office of Fair Trading (Department of Commerce)
• ACT: Office of Regulatory Services (Department of Justice and Community Safety)

By-Laws
By-laws are laws of local or limited application, passed under the authority of a higher law specifying
what things may be regulated by the by-law. By-laws can also refer to the internal rules of a company
or organisation, such as institutes, clubs and membership groups.

Municipal by-laws are public regulatory laws which apply in a certain area. The main difference
between a by-law and a law passed by a federal or state body is that a by-law is a made by a non-
sovereign body, which derives its authority from another governing body, and can only be made on a
limited range of matters.

A local council (for example) gets its power to pass laws through a law of the state government which
specifies what things the town or city may regulate through by-laws. It is therefore a form of delegated
legislation. The local council can therefore pass laws relating to areas of local planning (e.g.
subdivisions), zoning etc.

As long as a by-law is made correctly, within the jurisdiction of the authority, a municipal bylaw is no
different than any other law of the land, and can be enforced with penalties, challenged in court and
must comply with other laws of the land, such as the country's constitution.

Local by-laws are often enforceable through the public justice system, and offenders can be charged
with a criminal offence for breach of a by-law.

Common by-laws include vehicle parking and stopping regulations, animal control, building and
construction, licensing, noise, zoning and business regulation, and management of public recreation
areas. In Australia, by-laws are normally enforced (in the first instance) by council Rangers.
Acts and Subordinate Legislation in the Real Estate Industry
Below are some examples of “Principal Acts” and “Delegated / Subordinate Legislation” that governs
the Real Estate industry in the different States and Territories:

State/Territory Legislation – Principal Act Subordinate Legislation

NSW Property and Stock Agent Act 2002 Property and Stock Agent
Regulation 2014
Property and Stock Agents
(Qualifications) Order 2009
Residential Tenancies Act 2010 Residential Tenancies Regulation 2010
QLD Property Occupations Act 2014 Property Occupations Regulation 2014
Agents Financial Administration Act Agents Financial Administration
2014 Regulation 2014
Residential tenancies and rooming Residential tenancies and rooming
accommodation act 2008 accommodation regulation 2009
VIC Estate Agents Act 1980 Estate Agents (Professional Conduct)
Regulations 2018
Note: This is not an exhaustive list of the real estate / consumer protection legislation applicable in the states and territories mentioned above.

How Statute Legislation is Created

In Australia, laws are made:
• By politicians in Parliament
• By judges making decisions about court cases.

Parliament-made law overrules judge-made law if both apply to a case.

Acts of Parliament Laws made by Parliament are called Acts, statutes or legislation. To create new laws
a Bill (a draft Act) is debated in Parliament. If it is passed by a majority in both houses of Parliament it
becomes an Act.

Some Acts may outline broad guidelines or principles but leave the administrative detail to be defined
in regulations, rules or local laws. This is known as 'delegated legislation' and may be made by local
councils, public authorities or authorised public servants.

There are five key steps involved in making a law. These are:

1. Policy Development
This is the process by which ideals, ideas and practical needs are formalised and expressed in party or
Independent parliamentary members' policies.

2. Draft Bill stage

The Draft Bill is the conversion of proposed policies into a series of statements and clauses that will
eventually be placed before Parliament as a Bill. For the Government this task is undertaken by
Cabinet.
The technical detail of each clause is drafted by Parliamentary Counsel. The Public Service can also
recommend administrative changes to the relevant Minister. When the draft Bill is expressed in a form
acceptable to the Parliamentary party, it can be introduced into the Parliament.

3. Parliamentary Processes
Generally, a Bill may be initiated in either House of Parliament although in practice most Bills originate
in the Lower House. (Note: QLD has no Upper House).

A distinction is made between a Government Bill, introduced by the appropriate Minister, and a
Private Member's Bill, brought on by an Opposition, Independent, or Government backbench
member.

Examination of the Bill is then conducted in three formal stages:

Stage 1
Permission to introduce a Bill into Parliament and to proceed with it is obtained in the First Reading.
No debate is allowed.

Stage 2
In the Second Reading, sometime after the First Reading, the principles but not the details of the Bill
are debated. If at this stage the House decides to examine the Bill's clauses it has the option of
proceeding to what is termed the Committee Stage of a Bill in which all Members (a Committee of the
Whole) scrutinise and, if they decide, amend the Bill's clauses. That is, the Bill is committed.

Occasionally, Bills are instead referred to a Select Committee for examination. After the committee
phase the Chairman of Committees reports to the chamber on the status of the Bill. Usually the House
has the option either of considering the Bill further in Committee or passing on to the third and final
stage.

The committee stage is not compulsory. When Bills are considered uncontroversial or are of a minor
nature, the House may choose to avoid the committee stage and pass directly to the third and final
stage of parliamentary examination.

Stage 3
At the Third Reading, further debate may be permitted, but this is restricted and rarely resorted to.
The Bill is then passed.

When the Bill has passed the house of origin it is transmitted to the other Chamber where an identical
scrutiny procedure is followed.

Amendments may be made or suggested in which case messages pass between the two houses until
unanimity is achieved.

The Bill is now expressed in identical terms agreed upon and accepted by both houses. When this
occurs the parliamentary process is concluded.

4. Royal Assent
The Queen, represented by the Governor, approves the Bill. It is now referred to as an Act of
Parliament.
5. Commencement
The time from which the law, as specified in the Act of Parliament, applies or in other words is effective
from. An Act or Regulation does not carry legal force until it has commenced.

A commencement provision is usually the second or third section of an Act or Regulation and gives a
date of commencement. Generally, the naming and commencement provisions commence upon
assent or notification.

Acts frequently commence on assent or proclamation (this will usually be specified in the Act itself). A
proclamation is the publication of the commencement date of an Act in the Government Gazette. The
date is published with the consent of the Governor-General (CTH) or the Governor (in the States).
Regulations commence on a specified date (usually specified in the Regulation itself), or else on the
date of gazettal (notification in the gazette).

The various parliamentary Gazettes can be accessed on-line via the following websites:

• QLD: https://www.publications.qld.gov.au/group/gazettes-2019
• NSW: https://www.legislation.nsw.gov.au/#/gazettes

The same process is followed for amendments to the Act itself, but not necessarily the delegated or
subordinate legislation. However, all delegated legislation will be reviewed by the parliamentary
counsel.

Commencements can also be conditional eg. A consequential amendments Act may commence upon
the commencement of the primary principal Act in that area.

They may also commence after a set period of time has lapsed. Each State, Territory or Federal
Parliament have different rules for the amount of time which needs to pass before an automatic
commencement of this nature. This is usually reflected in the commencement table provisions.

The Parliamentary Counsels Offices provide legislative drafting services for the State. They draft all
Bills required for introduction into Parliament and draft or settle a wide range of subordinate
legislation, including regulations, rules, proclamations, orders and environmental planning
instruments for their state or territory.

Access to Legislation

The Internet and technology have enabled fast and easy access to legislation for everyone, and every
state and territory in Australia now allows unrestricted public access to its legislative database.

Legislation can be accessed through the following websites:

• Commonwealth: www.legislation.gov.au
• Queensland www.legislation.qld.gov.au
• NSW www.legislation.nsw.gov.au
• ACT www.legislation.act.gov.au

I’m sure you get the idea….

Each website provides additional information and links to aid in the interpretation of legislation,
finding legislation, explanatory notes and statements and the legislative process that applies to that
state.

Given that the legislation that real estate agents are bound to follow, it is recommended that agents
have a hard copy of each relevant act to hand for reference at all times.

As stated previously, Acts of Parliament bind all those who are affected by them. What that means is
that ignorance of the law is no excuse.

However, you may print off a copy of the act – but not know that a change has taken place – for that
reason, every state allows and provides access to legislative changes, and it is possible to subscribe to
changes in legislation through two different methods:

1. By subscription the legislative website and Parliamentary Counsels Offices. This can be done
through the legislation websites see above)

2. By subscribing to Fair Trading Updates. Each State’s fair Trading / regulatory services website has a
subscribe function, where updates are pushed out to email subscribers: See the following:

a. QLD: http://www.fairtrading.qld.gov.au/newsletters.htm
b. NSW: http://enews.fairtrading.nsw.gov.au/subscribe.aspx

Version Currency of Legislation

It is very important to ensure that the legislation being accessed is the most up to date version and
that you are not accessing a superseded version on the legislation otherwise you may without meaning
to be breaching the legislation.

Each legislation website includes version currency on each relevant legislation Therefore accessing the
direct source to make certain the version is current will prevent mistakes of application of superseded
legislation.

Interpreting Legislation

Each state has an Interpretation Act that defines the legislative process and prescribes the format and
process of making legislation. In addition, it provides an aid to interpreting legislation overcoming
some of the issues and problems relating to the interpretation of legislation in that state generally.

The rules of interpretation stated in Interpretation Act will normally apply to all other legislation.

The key issues dealt with in the interpretation acts include:

• How new legislation is commenced

• How existing legislation is amended or repealed, and the effect of amendment of repeals
• The meaning of common terms, such as “minister”, “department”, “document” and
“prescribed”
• Rules for measuring distance, calculating time
• The rules for serving, sending and posting documents
 • The procedure for delegating functions under legislation
• The use that can be made of other documents (such as official reports and parliamentary
statements) in interpreting ambiguous provisions in legislation
• The procedure for making subordinate legislation and statutory instruments
• Rules regarding legislation that is published, whether in print or in electronic databases.

The following are the relevant interpretation acts:

• QLD – Acts Interpretation Act 1954 An Act to assist in the shortening and interpretation of
Queensland Acts
• QLD – Statutory Instruments Act 1992 An Act relating to statutory instruments and for other
purposes related to legislation
• NSW – Interpretation Act 1987 An Act relating to the interpretation, construction, application
and operation of the legislation of New South Wales; to enact certain provisions of a common
or general nature; to make provision with respect to the exercise of certain statutory
functions; and for other purposes.
• ACT – Legislation Act 2001 An Act about legislation - The main object of this Act is to make
legislation more accessible.

Within every Act is a purpose or range of objectives that the Act is designed to achieve. These may be
very short (as in the case of most acts in the ACT, or quite lengthy (as in QLD Acts). Some will have
both a long and short title.

The long title is intended to provide a summarised description of the purpose or scope of the
instrument while short title is the formal name by which a piece of primary legislation may by law be
cited e.g Property and Stock Agent Act 2002.

The first step in interpreting legislation is to identify the particular section to be applied, and to
establish the plain and natural meaning of the words in that section.

The normal meaning of words is best ascertained by using a standard English dictionary. Sometimes,
a special meaning is given to words by the “definition” section of an Act, or the words will have
acquired a legal or technical meaning.

Many words, phrases and sentences in legislation may have different meanings to those founds in
standard English, and the use of commas to separate phrases is of paramount importance when
reading the sections. Often, omitting a comma can change the sense of a sentence completely.

In deciding which meaning, or range of meanings, to choose, regard should be had to other features
of the Act – such as the title, headings, structure, and surrounding sections. If a word in a statute or
subordinate legislation ahs a particular meaning, then it will be incorporated in a “dictionary”
contained within the Act.

These other features of the Act can be used to clarify, but should not change or distort, the meaning
of particular sections. Many points in regulations refer to sections within the act itself.
Structure of Legislation
Acts are normally organised into a logical format, but that format is different in the different states:
The hierarchy for the division of Acts in the states is shown below, with the highest first:

QLD NSW ACT

Title Title Title
Chapter Part Part
Part Division Division
Division Section Section
Section

The Acts will also contain the following parts:

1. Contents - The outline of the Act and the various sections provided in the Act.
2. Application - Objective of the Act can be referred also Objects
3. Dictionary / Definitions. This may be at the beginning of the Act (as in NSW), or referred to in one
of the first sections and listed towards the end.
4. Headings - The body of the legislation follows a hierarchy containing Chapters, pars, division and
subdivisions, clauses, subclauses, schedules and appendices
5. Historical Notes or Endnotes. These will show previous editions and their publication date.
6. Tables of Amendment. This section lists what has been amended as well as when the amendments
took effect.
7. Key. This is a list of abbreviations used in subsequent sections.
8. List of Legislation. This is a list of other legislation that has affected the present legislation.
9. Appendices - supplementary material usually attached at the end of a piece of writing. Generally
it includes supplementary information, which is not strictly compulsory to the main body of the
legislation. Appendices are often added at the end of legislation to give additional information
that will help a reader understand the materials presented.
10. Schedules - is a part of a Bill or a part of an Act. Bills may have a number of Schedules that appear
after the main Clauses in the text. They are often used to spell out in more detail how the
provisions of the Bill are to work in practice. If a Bill becomes an Act of Parliament, its Schedules
become Schedules of that Act.

Each state has a different format for their legislation, so it is essential that you refer to a copy of your
state’s Real Estate Act in order to find your way around.

In addition, Acts and subordinate legislation may have schedules attached. These schedules are part
of the Act, and usually serve to provide more detail in a concise format. In addition, the headings,
margin notes, footnotes and endnotes are also deemed to be part of the Act.

Interrelationship between pieces of legislation

Individual pieces of legislation (say Act A) sits among many other individual pieces some of which have
an effect on Act A. Generally speaking, Act A (and its subsidiary legislation) will stand alone and not
have an effect on other legislation. If Act A has any effect on other legislation it will usually be stated
in it or in the other legislation. The effect other legislation has on Act A may be to answer questions
not answered in Act A. But the effect may be one in conflict with or inconsistent with Act A. What if
Act A says ‘do X’ and Act B says ‘do Y’ and X conflicts with or is inconsistent with Y?

Sometimes it is hard to know if there is a conflict or inconsistency. For example, if a law imposes a
speed limit of 50 kph and another a limit of 70 kph on the same road, it is possible to obey both. There
is case law on that. If the conflict is between Act A and a piece of subsidiary legislation, Act A usually
prevails. But, of course, Act A or some other Act might say otherwise. If the conflict is between two
state Acts, those questions have to be resolved by statutory interpretation. Often the more recently
enacted Act prevails but beginners should be careful on this and get legal advice. Likewise if the conflict
is between two pieces of state subsidiary legislation. If the conflict is between state legislation and the
Commonwealth’s, the Commonwealth’s prevails. But, of course, a Commonwealth Act might say
otherwise. The extent to which one piece of legislation prevails over another is also sometimes hard
to know. Again, there is case law on that. If two pieces of legislation seem to conflict, it is usually
advisable to get legal advice on whether there is a conflict, on which prevails, and to what extent it
prevails.

Individual piece of legislation (say Act A) exists alongside case law some of which is on statutory
interpretation. Some case law might be about Act A itself. Which case law is relevant to a particular
question of statutory interpretation will depend on the question. So the meaning of legislation
sometimes depends on what case law says. Readers who are not lawyers should be careful when
reading case law because one case’s decision may have been overruled or modified by a later case. So
a case that seems to answer a question of statutory interpretation may in fact not.

Key principles for reading and interpreting legislation:

To assist judges in interpreting statutes there exist various aids that they may refer to. Aids to statutory
interpretation are divided into internal aids and external aids. These are sometimes referred to as
intrinsic aids and extrinsic aids to interpretation.

Internal/Intrinsic Aids
Intrinsic aids are matters within an Act itself which may help make the meaning clearer. The court may
consider the long title, the short title and any preamble. Other useful internal aids may include
headings before a group of sections and any schedules attached to the Act. There are also often
marginal notes explaining different sections; however, these are not generally regarded as giving
Parliament's intention as they will have been inserted after parliamentary debates and are only helpful
comments put in by the printer.

Some Acts include sections in which words are expressly defined. For example, the 1963 Animal
Boarding Act section 5(2) states: ‘In this Act animal means any dog or cat.’

The Interpretation Act 1978 section 6 also states that unless the contrary intention appears, words
importing the masculine gender also include the feminine and words importing the feminine gender
also include the masculine. In addition, words in the singular also include the plural and words in the
plural include the singular.

Internal aids are those contained in the statute itself and consist of:
• The long title of the Act
• Explanatory notes
• Other sections of the Act
• Definition sections in the Act

External/Extrinsic Aids
Material that does not form part of an Act but which may assist in the interpretation of that Act and
which may help put an Act into context. Such material includes explanatory memoranda, reports of
law reform commissions and parliamentary committees and second reading speeches, previous Acts
of Parliament on the same topic, earlier case law and case law from other jurisdictions, and
dictionaries of the time and Hansard can now be considered.
Also known as 'extrinsic aids'.

Explanatory Memoranda
An explanatory memorandum is an executive document issued at the same time as a bill. It's purpose
is to explain the aims and operation of the statute. In statutory interpretation, if the meaning of a
provision in an Act is ambiguous or obscure, reference may be made to explanatory memoranda in
order to ascertain the meaning of the provision.

Law Reform Commission Reports

A Law Reform Commission is an organisation with a focus on the systematic development, review and
reform of the law in a particular jurisdiction. Each Australian state and territory and the
Commonwealth have associated law reform agencies. As a result of Commission inquiries and projects,
publications are produced including background papers, issues papers, consultation papers and final
reports.

Parliamentary Committee Reports

When a bill is debated in parliament, it is sometimes necessary to refer the bill to a committee, which
specialises in the subject area of the bill, for an advisory report.

Second Reading Speeches

A speech given by the relevant Minister in parliament outlining the policy underlying a proposed law
(a Bill) during the second reading. Second reading speeches are included in the published
parliamentary debates known as Hansard. They are particularly useful in determining the historical
intent of new and amending legislation. As an aid to statutory interpretation, second reading speeches
may be used to discern the underlying purpose or object of a statute.

Hansard
Is the official report of what was said in Parliament when the Act was debated. It permits Hansard to
be used where the legislation is ambiguous or obscure or leads to an absurdity, and the material relied
on comprises one or more statements by a Minister or other promoter of the Bill and such other
parliamentary material as is necessary to understand the statements, and the effect and the
statements that were relied on have to be clear.
• Dictionaries
• text books
• Academic writings

Language conventions are basically different ways the writer uses and manipulates language to
encourage the audience to view something in a certain way.

Language conventions and expressions:

In legislation the language conventions and expression used are important to the interpretation of the
information presented.

And/or - used to refer to both things or either one of the two mentioned) either "and" or "or":
Gender
Acts Interpretation Act 1901
23 Rules as to gender and number
In any Act:
words importing a gender include every other gender;
Hierarchy - For most purposes, the higher up a court is in the hierarchy, the more authoritative its
decisions. In the sense that decisions of the higher courts will bind lower courts to apply the same
decided principle.
Includes - to contain something as a part of something else, or to make something part of something
else:
May - used to express possibility:
Should - used to show when something is likely or expected:
Must - used to show that it is necessary or very important that something is done

Reading Rules
Literal rule
Literal rule – unless a definition says otherwise, the "ordinary and natural meaning" of a word or
phrase should be used.
Mischief rule
Mischief rule – legislation should be interpreted in a manner consistent with its purpose: the
"mischief" it is intended to remedy.

Golden rule
Golden rule – legislation should be interpreted in a manner which avoids obvious absurdities or
inconsistencies.

Purposive approach
Purposive approach – text should be interpreted in a way that is consistent with the purpose of the
legislation.

Express mention of one thing to the exclusion of another

The legal concept is that if the legislature mentions specifically only certain items from a larger class
of items, it meant to include only the items specified and to exclude those items that were omitted.

Relevant Legislation for the Real Estate Industry

The following is a list of the legislation that specifically impacts upon the role of a real estate agent
and should be fully understood by all registered and licensed agents.

Commonwealth Legislation:
Competition and Consumer Act 2010, especially:
Schedule 2 - The Australian Consumer Law
• Chapter 2 - Part 2-1—Misleading or deceptive conduct
• Chapter 2 - Part 2-2—Unconscionable conduct
• Chapter 3 - Part 3-1—Unfair practices
o Div 1—False or misleading representations etc.
s.29 False or misleading representations about goods or services
s.30 False or misleading representations about sale etc. of land
s.32 Offering rebates, gifts, prizes etc.
s.34 Misleading conduct as to the nature etc. of services
s.35 Bait advertising
Foreign Acquisitions and Takeovers Act 1975 and Regulation 1989
• Section 12 in the Act (3 in the Regulations) deal with “off the plan” sales to foreign investors)

State Legislation:
New South Wales
• Property and Stock Agents Act 2002 and Regulation 2014
o Director General’s Guidelines for Continuing Professional Development 2013 (via OFT website)
• Residential Tenancies Act 2010 and Regulation 2010
• Fair Trading Act 1987 and Regulation 2007

This is a MINIMUM requirement…

Personal Responsibility

Remember:
1. As a professional Real Estate Agent are expected to know more about the law and it’s
application than:
a. The people you represent and advise (your clients) and
b. The people you introduce to your client (your buyers and tenants).

2. Ignorance of the law is no excuse.

Discrepancies in application of legislation.

Discrepancies between the legislation and its application by the agency and its staff can create a
large degree of risk to the business. These discrepancies can occur for a variety of reasons such as
lack of staff training, purposeful breaches etc. However, one thing is certain, these need to be
resolved promptly to ensure the risks to the agency are kept at a minimum.

Should a staff member identify a discrepancy it should be reported to management or the principal
licensee. This should then be investigated to undertake a risk management strategy and identify the
risks associated with the discrepancy, assessment of the risk, implementation of treatments to
remove the discrepancy such as implementation of policy and procedures and the monitoring the
risk to ensure that discrepancies no longer occur.

Should the risk be associated with a major breach, such as an employee or principal defrauding a
trust account the Office of Fair Trading would need to be contacted to investigate and apply the
correct disciplinary action.
Other Relevant Legislation
At some time or other the following Acts and Regulations may be applicable in your day to day
activities in real estate and therefore it is important to be aware of these and understand how to
source access when the time comes to requiring these.

Anti-discrimination and equal employment opportunity

Anti-discrimination Act 1977 (NSW)
Age Discrimination Act 2004 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Disability Discrimination Act 1992 (Cth)
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)

Anti-money laundering
Anti-money laundering and Counter-Terrorism Financing Act 2006 (Cth)

Consumer protection, fair trading and trade practices

Fair Trading Act 1987 and Fair Trading Regulation 2019 (NSW)
Competition and Consumer Act 2010 and Regulations (Cth)

Employment and industrial relations

Fair Work Act 2009 and Regulations (Cth)
Property and Stock Agents (Qualifications) Order 2009 (NSW)

Environmental and sustainability

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Financial services, financial probity and taxation

Corporations Act 2001 and regulations (Cth)
Crimes Act 1958 (Cth)
Financial Services Reform Act 2001 (Cth)
Income Tax Act 1986 and Regulations (Cth)

Franchises and business structure:

Trade Practices (Industry Codes – Franchising) Regulations 1998 (Cth)
Corporations Act 2001 and Regulations (Cth)
Fair Trading Act 1987 and Fair Trading Regulation 2019 (NSW)
Competition and Consumer Act 2010 and Regulations (Cth)

Property management/leases and tenancy agreements

Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2010 (NSW)
Retail Trading Act 2008 (NSW)
Property sales
Home Building Act 1989 No 147(NSW)
Conveyancing Act 1919 No 6 (NSW)
Property and Stock Agents Act 2002 No 66 (NSW)
Property and Stock Agents Regulation 2014 (NSW)
Native Title Act 1993 (Cth)
Strata Schemes Management Act 2015 No 50 (NSW)
Strata Schemes Management Regulation 2016 (NSW)
Real Property Act 1900 No 25 (NSW)
Land Sales Act 1964 No 12 (NSW)
Local Government Act 1919 No 41 (NSW)
Environmental Planning and Assessment Amendment Act 2017 No 60 (NSW)
Crimes Act 1900 No 40 (NSW)
Duties Act 1997 No 123 (NSW)
Family Law Act 1975 (Cth)

Occupational health and safety

Work Health and Safety Act 2011 No 10 and Regulation 2017 (NSW)

Privacy
Privacy Act 1988 (Cth)

Foreign Investment
Foreign Acquisitions and Takeovers Act 1975
Foreign Acquisitions and Takeovers Fees Imposition Act 2015
Register of Foreign Ownership of Water or Agricultural Land Act 2015
Foreign Acquisitions and Takeovers Regulation 2015
Foreign Acquisitions and Takeovers Fees Imposition Regulation 2015
Register of Foreign Ownership of Water or Agricultural Land Rules 2017
Secret Commissions
Crimes Act 1900 (NSW)
Note: This is not an exhaustive list of the real estate / consumer protection legislation applicable in the states and territories mentioned above.
Real Estate Codes of Conduct

Within the Regulations applicable for each state are Codes of Conduct, Rules of Conduct or Codes of
Practice.

These represent the minimum standards that apply to workers, whether licensed or registered in the
industry. Failure to adhere to the Code or Rules renders the individual, as well as the corporation liable
to fines and other penalties.

Extreme breaches of the Act or any other part of the act included within the subordinate legislation
(regulation, guidance notes etc), may result in the loss of a licence or revocation of a registration
certificate. Don’t think that it can’t happen to you – it has.

Normally, if a breach of rules in identified by the regulatory authority, that is likely to trigger an
investigation into other aspects of agency operation.

There are a number of industry associations that also publish Codes of Conduct, or have specific
requirements that agents must follow. For instance, the Real Estate Institutes in the different states
and territories may have established Codes of Conduct or other specific requirements that are a
condition of membership.

Codes such as these are not legally binding, but if a member of that particular organisation is found to
be in breach of their internal code, then they may be disbarred from membership. Continued
membership may also be dependant on the individual member meeting their statutory obligations for
the practice in their state or territory.

Conclusion

This Unit of competency has looked at the processes involved in creating and distributing legislation,
so that everyone involved in the industry is able to access and understand fully the regulatory
framework in which the industry operates.

It is vital, in this day and age, that agents have access to the legislation and regulations in the industry,
and ensure that both they, and their colleagues frequently check to ensure that they are fully up to
date with changes as they occur.

The assessment that accompanies this workbook will enable you to investigate for your self the
websites and resources available to you, and you will need to have access to the internet to be able
to successfully complete the tasks required and gain competency in this Unit.