Queensland: Debt Collectors (Field Agents and Collection Agents) Act 2014 (Qld)

Debt Collectors (Field Agents and Collection Agents) Act 2014 An Act to comprehensively provide for the regulation of the activities and conduct of debt collectors and subagents and to protect consumers against particular undesirable practices Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Debt Collectors (Field Agents and Collection Agents) Act 2014. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Act binds all persons (1) This Act binds all persons, including the State, and, so far as the legislative power of Parliament permits, the Commonwealth and the other States. (2) Nothing in this Act makes the State, the Commonwealth or any other State liable to be prosecuted for an offence. 4 Relationship with Fair Trading Inspectors Act 2014 (1) The Fair Trading Inspectors Act 2014 enacts common provisions for this Act and particular other Acts about fair trading. (2) Unless this Act otherwise provides in relation to the Fair Trading Inspectors Act 2014, the powers that an inspector has under that Act are in addition to and do not limit any powers the inspector may have under this Act. Division 2 Exemptions 5 Public officials (1) Section 30 does not apply to— (a) a bailiff serving a notice, claim, application, summons or other process; or (b) a person, other than a debt collector, who is an enforcement officer or a member of the staff of the State Penalties Enforcement Registry under the State Penalties Enforcement Act 1999— (i) collecting, or requesting payment of, debts; or (ii) serving a notice, claim, application, summons or other process. (2) In this section— bailiff means a bailiff appointed under the Supreme Court of Queensland Act 1991, the District Court of Queensland Act 1967 or the Magistrates Courts Act 1921. 6 Administrators etc. (1) This section applies to the following persons (each an appointee)— (a) a person appointed under the Corporations Act as an administrator of a corporation that is or was authorised under a relevant authorisation to perform a regulated activity; (b) a person appointed under the Corporations Act as an administrator of a deed of company arrangement for a corporation that is or was authorised under a relevant authorisation to perform a regulated activity; (c) a person appointed under the Corporations Act as a liquidator, or controller of property, of a corporation that is or was authorised under a relevant authorisation to perform a regulated activity; (d) a person appointed under the Administration Act as a receiver in relation to a person that is or was authorised under a relevant authorisation to perform a regulated activity; (e) a person appointed as the trustee in bankruptcy for an individual who is or was authorised under a relevant authorisation to perform a regulated activity; (f) an Official Receiver under the Bankruptcy Act 1966 (Cwlth) exercising powers or performing functions under that Act in relation to an individual who is or was authorised under a relevant authorisation to perform a regulated activity. (2) The appointee is exempt from the prescribed provisions while performing the regulated activity in relation to any business that is or was authorised to be carried on under the relevant authorisation, in accordance with— (a) if the relevant authorisation is in force—any conditions applying to the authorisation; or (b) if the relevant authorisation is not in force—any conditions applying to the authorisation when it stopped being in force. (3) However, if the appointee is appointed for a corporation that is or was authorised under a licence to perform a regulated activity, the appointee may only perform the activity if— (a) if there is a field agent in charge of the corporation's regulated business—the activity may be performed by the agent; or (b) if there is not a field agent in charge of the corporation's regulated business—the activity may have been performed by the last field agent in charge of the corporation's regulated business. (4) In this section— person appointed as the trustee in bankruptcy, for an individual, means— (a) the Official Trustee under the Bankruptcy Act 1966 (Cwlth) if the Official Trustee is the trustee of the estate of the individual; or (b) a person appointed under the Bankruptcy Act 1966 (Cwlth) as the trustee of the estate of the individual. prescribed provisions means sections 21, 23, 25, 28 and 30. relevant authorisation means either of the following— (a) a licence; (b) an authorisation under part 2, division 3. 7 Financial institutions and trustee companies (1) Part 3 does not apply to a financial institution or trustee company. (2) In this section— trustee company means— (a) a trustee company under the Trustee Companies Act 1968; or (b) the public trustee when the public trustee is— (i) performing the activities that may be performed by a trustee company; or (ii) exercising the powers that may be exercised by a trustee company; or (iii) holding an office that may be held by a trustee company. Division 3 Objects of Act 8 Objects (1) The objects of this Act are— (a) to provide a system for the regulation of the activities and conduct of debt collectors and subagents that achieves an appropriate balance between— (i) the need to regulate for the protection of consumers; and (ii) the need to promote freedom of enterprise in the market place; and (b) to provide a way of protecting consumers against particular undesirable practices associated with a regulated activity. (2) The objects are to be achieved mainly by— (a) ensuring— (i) only suitable persons are authorised to engage in regulated activities; and (ii) persons who carry on a regulated business or are in charge of a regulated business maintain supervision of the way the business is carried on; and (b) providing— (i) protection for consumers in their dealings with persons regulated under this Act; and (ii) a legislative framework within which persons performing particular activities may lawfully operate; and (c) regulating fees and commissions that can be charged for particular transactions; and (d) providing increased flexibility in enforcement measures through injunctions and undertakings; and (e) promoting administrative efficiency by providing that— (i) responsibility for licensing rests with the chief executive; and (ii) responsibility for reviewing particular decisions of the chief executive rests with QCAT; and (iii) responsibility for disciplining field agents and subagents, and dealing with collection agents in a similar way, rests with QCAT. Division 4 Interpretation 9 Definitions The dictionary in schedule 2 defines particular words used in this Act. 10 Meaning of regulated activity and related terms (1) A regulated activity is— (a) a debt collection activity; or (b) a repossession activity; or (c) a process serving activity. (2) A debt collection activity is the collecting of, or requesting payment of, debts. (3) A repossession activity is the finding, or repossessing, for a person of any goods or chattels that the person is entitled to repossess under an agreement. (4) A process serving activity is the serving of any writ, claim, application, summons or other process. 11 Meaning of regulated business A regulated business is a business, or a part of a business, that involves the performance of a regulated activity. 12 Meaning of in charge A person is in charge of a regulated business only if the person supervises, manages or controls the carrying on of the business. 13 Meaning of registered office A field agent's registered office is— (a) for a principal field agent— (i) the place the agent states in the agent's application for a licence as the agent's principal place of business; or (ii) another place notified to the chief executive by the agent in the approved form as the agent's principal place of business; or (b) for an employed field agent— (i) the place the agent states in the agent's application for a licence as the agent's business address; or (ii) another place notified to the chief executive by the agent in the approved form as the agent's business address. Part 2 Authorisations Division 1 Licences 14 What a licence authorises (1) A licence authorises the holder of the licence (a field agent) to perform the following activities as an agent for others for reward— (a) a debt collection activity; (b) a repossession activity; (c) a process serving activity. (2) Subsection (1) is subject to any limitations imposed under a condition of the licence. (3) The field agent may perform the activities in the following capacities— (a) in the carrying on of a regulated business, either alone or with others; (b) as an employee of someone else. 15 Restrictions on corporations (1) A corporation that holds a licence is authorised to perform a regulated activity under its licence only if the activity may be performed by a field agent in charge of the corporation's regulated business. (2) If the corporation performs a regulated activity it is not authorised to perform, it is taken to be a person who acts without an authorisation for the performance of the activity. 16 Restrictions on individuals (1) An employed field agent who is an individual is authorised to perform a regulated activity authorised under the agent's licence only if the activity may also be performed by the agent's employer under the employer's licence. Example— E is a licensed employee of P, a principal field agent. E's licence is not subject to a condition. However, P's licence is subject to the condition that P only engage in the collection of debts. Because of the condition, E is only authorised to engage in the collection of debts under E's licence during E's employment with P and while P's licence is subject to the condition. (2) If the employed field agent performs a regulated activity the agent is not authorised to perform because of subsection (1), the agent is taken to be a person who acts as a person without an authorisation for the performance of the activity. 17 Licence conditions (1) This section applies to a field agent who performs a regulated activity that the agent is not authorised to perform because of a condition of the agent's licence. (2) The field agent is taken to be a person who acts as a person without an authorisation for the performance of the activity. Note— For the consequences of a field agent performing a regulated activity the agent is not authorised to perform under this division, see sections 26 and 30. Division 2 Registration certificates 18 What a registration certificate authorises (1) A registration certificate authorises the holder of the certificate (a subagent) to perform any of the following activities that may be performed by the field agent who employs the subagent— (a) a debt collection activity; (b) a repossession activity; (c) a process serving activity. (2) Subsection (1) is subject to any limitations imposed under a condition of the registration for which the certificate was issued. (3) The subagent may perform the activities only in the capacity of an employee of someone else. Division 3 Automatic authorisations 19 Automatic authorisation for limited debt collection activity (1) A person may, as an agent for others for reward and without a licence or registration certificate, perform a debt collection activity but only— (a) to the extent the person does not engage in face-to-face communication with the debtor; and (b) if the person is suitable to perform a debt collection activity under part 6. (2) The person may perform the debt collection activity in the following capacities— (a) in the carrying on of a regulated business, either alone or with others; (b) as an employee of someone else. (3) A person performing a debt collection activity under the authority of this section is a collection agent. 20 Restriction on performing debt collection activity (1) This section applies to a collection agent who performs a debt collection activity that the agent— (a) is not authorised to perform under section 19; or (b) is not authorised to perform because of a condition imposed on the agent by QCAT under section 116(1)(e). (2) The collection agent is taken to be a person who acts as a person without an authorisation for the performance of the activity. Note— For the consequences of a collection agent performing an activity that the agent is not authorised to perform, see sections 26 and 30. Part 3 Conduct Division 1 Responsibilities 21 Field agent to be in charge of regulated business (1) A principal field agent who is an individual must be in charge of the agent's regulated business. Maximum penalty—200 penalty units. (2) A principal field agent that is a corporation must ensure that the individual in charge of the agent's regulated business is a field agent. Maximum penalty— (a) for an individual guilty of the offence under the Criminal Code, chapter 2—200 penalty units; or (b) for a corporation—1000 penalty units. 22 Responsibility for acts and omissions of subagents (1) A principal field agent must take reasonable steps to ensure each of the agent's employees who is a subagent is properly supervised and complies with this Act. (2) An employed field agent who is in charge of a regulated business must take reasonable steps to ensure each of the business's employees who are subagents is properly supervised and comply with this Act. Note— A contravention of subsection (1) or (2) is a ground for making an order against a field agent under section 116. Division 2 Appointment and engagement 23 Appointment for debt collection or repossession activities (1) A debt collector must not, for reward, perform a debt collection activity or repossession activity (service) for a client unless— (a) the client first appoints the collector under this section; or (b) an appointment under this section that is in force is assigned to the collector under the terms of the appointment. Maximum penalty—200 penalty units. (2) The appointment may be for the performance of— (a) a particular service (single appointment); or (b) a number of services over a period (continuing appointment). (3) The appointment must be in writing and— (a) contain the particulars prescribed under a regulation; and (b) state all of the following— (i) the service to be performed by the debt collector and how it is to be performed; (ii) the fees, charges and any commission payable for the service; (iii) when the fees, charges and commission for the service become payable; (iv) the expenses, including travelling expenses, the debt collector is authorised to incur in connection with— (A) for a single appointment—the performance of the service; or (B) for a continuing appointment—the performance of each service or category of service; (v) the source and the estimated amount or value of any rebate, discount, commission or benefit that the debt collector may receive for any expenses the debt collector is authorised to incur in connection with the performance of the service; (vi) any condition, limitation or restriction on the performance of the service. (4) A continuing appointment must also state— (a) the date the appointment ends; and (b) that the appointment may be revoked on the giving of 90 days notice, or the lesser period (of at least 30 days) agreed by the parties. (5) The notice revoking a continuing appointment must be by signed writing given to the other party. (6) The appointment must be signed and dated by the client and the debt collector or someone authorised or apparently authorised to sign for the collector. (7) The debt collector must give a copy of the signed appointment to the client. Maximum penalty—200 penalty units. 24 Form of appointment (1) An appointment under section 23 must be in writing and contain any particulars that may be prescribed under a regulation. (2) An appointment under section 23 that does not comply with subsection (1) is ineffective from the time it is made. 25 Engagement for process serving activities A field agent must not perform a process serving activity for a client for reward (the service) unless the client has engaged the agent in writing to perform the service. Maximum penalty—200 penalty units. Division 3 Recovery of expenses and costs 26 Restriction on remedy for reward or expense A person must not sue for, or recover or keep, a reward or expense for the performance of a regulated activity as an agent for others for reward unless— (a) the person was authorised under part 2 to perform the activity; and (b) the person had been properly appointed or engaged under division 2 by the client. Maximum penalty—200 penalty units. 27 Recovery of costs of debt collector (1) A person must not recover or attempt to recover from a debtor the costs or expenses of a debt collector for performing a debt collection activity or a repossession activity. Maximum penalty—200 penalty units. (2) Subsection (1) does not apply to prevent a person who appoints a debt collector to repossess goods or chattels from a debtor from recovering the debt collector's costs and expenses if the person has a right under an agreement with the debtor or otherwise to recover the costs or expenses. (3) Costs or expenses recovered in contravention of this section may be recovered by the debtor as a debt. (4) This section applies subject to the National Credit Code in schedule 1 of the National Consumer Credit Protection Act 2009 (Cwlth). (5) In this section— costs do not include— (a) stamp duty; or (b) legal costs fixed by, or payable under, rules of court or a court order. debtor includes a person from whom goods or chattels may be lawfully repossessed. Division 4 Notifiable changes 28 Notice to chief executive of change in place of business etc. (1) A principal field agent must notify the chief executive in the approved form of— (a) any change in the agent's principal place of business within 14 days after the change; and (b) the closure of any place where the agent carries on a regulated business within 14 days after the closure; and (c) the opening of any place where the agent carries on a regulated business within 14 days after the opening. Maximum penalty—200 penalty units. (2) An employed field agent must notify the chief executive in the approved form of any change in the agent's business address within 14 days after the change. Maximum penalty—200 penalty units. 29 Notice to chief executive of changes in circumstances (1) A field agent or subagent must give written notice to the chief executive of a prescribed change in the agent's or subagent's circumstances within 14 days after the change. Maximum penalty—100 penalty units. (2) In this section— prescribed change means a change prescribed under a regulation. Division 5 Prohibited conduct 30 Acting as debt collector (1) A person must not, as an agent for someone else for reward, perform a regulated activity unless the person is authorised under this or another Act to perform the activity. Maximum penalty—200 penalty units or 2 years imprisonment. (2) A person must not act as a debt collector unless the person is authorised under this or another Act to perform activities of a debt collector. Maximum penalty—200 penalty units or 2 years imprisonment. (3) Without limiting the ways a person may act as a debt collector, a person acts as a debt collector if the person— (a) performs a regulated activity as an agent for someone else for reward; or (b) advertises, notifies or states that the person— (i) performs a regulated activity as an agent for someone else for reward; or (ii) is willing to perform a regulated activity as an agent for someone else for reward; or (c) in any way holds out as being ready to perform a regulated activity as an agent for someone else for reward. (4) However, a lawyer does not act as a debt collector merely because the lawyer collects debts in the lawyer's practice if the lawyer complies with the requirements of the Legal Profession Act 2007 relating to the debts. (5) In this section— lawyer means a lawyer who, under the Legal Profession Act 2007, may engage in legal practice in the State. 31 Acting as subagent (1) A person must not act as a subagent unless the person is registered as a subagent. Maximum penalty—200 penalty units. (2) In this section— act as a subagent, for a person, includes hold out that the person is a subagent. 32 Acting for more than 1 party prohibited (1) A debt collector who is appointed to perform an activity for a person (client) in relation to another person must not accept appointment from the other person to perform an activity while the collector continues to act for the client in relation to the other person. Maximum penalty—200 penalty units. (2) Subsection (1) does not apply if the debt collector acts for more than 1 party in relation to a debt agreement under the Bankruptcy Act 1966 (Cwlth), part IX. 33 Production of licence or registration certificate (1) A field agent must, if asked by a person with whom the agent is dealing, produce the agent's licence for inspection by the person. Maximum penalty—100 penalty units. (2) A subagent must, if asked by a person with whom the subagent is dealing, produce the subagent's registration certificate for inspection by the person. Maximum penalty—100 penalty units. 34 Employment of persons in regulated business (1) A principal field agent must not employ a person to perform regulated activities for the agent as a subagent if the agent knows, or ought to know, the person does not hold a registration certificate. Maximum penalty—200 penalty units. (2) A principal field agent who is an individual must not employ himself or herself, or another individual with whom the agent carries on business as a field agent, to perform regulated activities for the agent as a subagent. Maximum penalty—200 penalty units. (3) A principal field agent that is a corporation must not employ an executive officer of the corporation to perform regulated activities for the agent as a subagent. Maximum penalty— (a) for an individual guilty of the offence under the Criminal Code, chapter 2—200 penalty units; or (b) for a corporation—1000 penalty units. 35 Licence or registration certificate not to be used improperly (1) A field agent or subagent must not— (a) represent that the person's licence or registration certificate entitles the person to exercise a power the person may not lawfully exercise; or (b) use the person's licence or registration certificate to exercise a power the person may not lawfully exercise. Maximum penalty—200 penalty units or 1 year's imprisonment. (2) A collection agent must not represent that the person's authorisation under part 2, division 3 entitles the person to exercise a power the person may not lawfully exercise. Maximum penalty—200 penalty units or 1 year's imprisonment. (3) In this section— represent includes suggest or imply. use includes attempt to use. 36 Unlawful entry A field agent or subagent must not, when performing a regulated activity, enter any premises without lawful authority. Maximum penalty—200 penalty units or 1 year's imprisonment. 37 Misrepresentation (1) A debt collector or subagent must not by any false or misleading representation induce a person to enter into an arrangement for the payment of a debt. Maximum penalty—200 penalty units or 2 years imprisonment. (2) In this section— false or misleading, in relation to a representation, includes the wilful concealment of a material fact in the representation. induce includes attempt to induce. 38 Impersonating debt collectors (1) A creditor, when dealing with a person for payment of a debt, must not use any name, description, document or device intended to make the person believe that the person is not dealing directly with the creditor, but with a debt collector acting on the creditor's behalf. Maximum penalty—200 penalty units or 2 years imprisonment. (2) A debt collector must not give any document to a creditor to enable the creditor to make a third person believe that the third person is dealing directly with the debt collector. Example for subsection (2)— debt collector's letterhead or stationery Maximum penalty—200 penalty units or 2 years imprisonment. Division 6 Prescribed conduct provisions 39 Prescribed conduct provisions (1) A regulation may provide for conduct standards for debt collectors and subagents in performing a regulated activity. (2) A provision mentioned in subsection (1) is a prescribed conduct provision. Note— A contravention of a prescribed conduct provision is a ground for making an order against a debt collector or subagent under section 116. Part 4 Licensing Division 1 How to obtain a licence 40 Steps involved in obtaining a licence (1) A person who wishes to obtain a licence must apply for the licence by— (a) giving the chief executive an application showing, among other things, the person is eligible to obtain the licence; and (b) paying— (i) the fees prescribed under a regulation; and (ii) if, before or when the application is made, a criminal history costs requirement is made of the person—the amount of the costs required to be paid; and (c) giving the chief executive the other information required under section 41. (2) In deciding the person's application the chief executive must have regard, among other things, to— (a) the person's suitability to hold a licence; and (b) the person's eligibility to hold a licence. Division 2 Applications for licence 41 Application for licence (1) An applicant for a licence must— (a) apply to the chief executive in the approved form; and (b) state the term of the licence being applied for; and (c) establish the applicant's eligibility for a licence; and (d) state the names and addresses of the applicant's business associates; and (e) provide any information the chief executive reasonably requires to decide whether the applicant is a suitable person to hold a licence. (2) The application must be accompanied by— (a) the application fee prescribed under a regulation; and (b) the licence issue fee prescribed under a regulation; and (c) if, before or when the application is made, a criminal history costs requirement is made of the applicant—the amount of the costs required to be paid; and (d) for an applicant who is an individual, 2 recent colour photographs of the applicant of a size prescribed under a regulation and certified as photographs of the applicant in the way prescribed under a regulation. (3) The chief executive may, by written notice given to the applicant, require the applicant to give the chief executive within a stated reasonable period information or material the chief executive reasonably believes is needed to consider the application. (4) An applicant is taken to have withdrawn the application if the applicant fails to comply with a requirement made under subsection (3). 42 Applicant must state business address (1) The applicant must also state in the applicant's application— (a) if the applicant intends carrying on a regulated business immediately after the issue of the licence—the place or places in Queensland where the applicant proposes to carry on a regulated business; or (b) if the applicant does not intend carrying on a regulated business immediately after the issue of the licence— (i) the capacity in which the applicant intends performing activities under the licence and the address where the activities are to be performed; and Examples of capacity in which activities may be performed— • as a person in charge of a corporation's regulated business • as an employed field agent (ii) if the applicant intends to be a person in charge of a regulated business—the name of the applicant's employer and the address of the places of business where the applicant is to be in charge. Example of an address for subparagraphs (i) and (ii)— the address of a person's employer's place of business where the person generally reports for work (2) If the applicant intends to carry on a regulated business at more than 1 place, the applicant must state in the application the place the applicant intends to be the applicant's principal place of business. (3) A place of business or an address under this section— (a) must be a place where a document can be served personally; and (b) must not be a post office box. 43 Particular persons can not make application (1) A person who is disqualified from holding a licence can not make an application for a licence during the period for which the person is disqualified. (2) A corporation that was the holder of a licence that was cancelled can not make an application for a licence unless the corporation satisfies the chief executive that, because of a genuine sale— (a) no person who was a shareholder of, or held a beneficial interest in, the corporation when the licence was cancelled is a shareholder of, or holds a beneficial interest in, the applicant corporation; and (b) no person who was in a position to control or influence the affairs of the corporation when the licence was cancelled is in a position to control or influence the affairs of the applicant corporation. (3) A person who made an application for a licence that was refused can not make another application for a licence— (a) for 3 months after the day the chief executive gave the person an information notice about the refusal; or (b) if the applicant applies to QCAT to review the chief executive's decision and the decision is confirmed, for 3 months after the day the decision is confirmed. (4) Subsection (3) does not apply if— (a) the applicant is a corporation; and (b) the applicant satisfies the chief executive that, because of a genuine sale— (i) no person who was a shareholder of, or held a beneficial interest in, the corporation when the refused application was made is a shareholder of, or holds a beneficial interest in, the applicant corporation; and (ii) no person who was in a position to control or influence the affairs of the corporation when the refused application was made is in a position to control or influence the affairs of the applicant corporation. Division 3 Suitability of applicants and field agents 44 Suitability of applicants and field agents—individuals (1) An individual is not a suitable person to hold a licence if the person is— (a) an insolvent under administration; or (b) a person who has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; or (c) currently disqualified from holding a licence or being registered as a subagent; or (d) a person the chief executive decides under section 46 is not a suitable person to hold a licence. (2) An individual who is not a suitable person can not hold a licence. 45 Suitability of applicants and field agents—corporations (1) A corporation is not a suitable person to hold a licence if the corporation— (a) has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; or (b) is currently disqualified from holding a licence; or (c) is a person the chief executive decides under section 46 is not a suitable person to hold a licence. (2) A corporation is also not a suitable person to hold a licence if an executive officer of the corporation is not a suitable person to hold a licence under section 44. (3) A corporation that is not a suitable person can not hold a licence. 46 Chief executive must consider suitability of applicants and field agents (1) The chief executive must consider the following things in deciding whether a person is a suitable person to hold a licence— (a) the character of the person; (b) the character of the person's business associates; (c) whether the person held a licence or registration under a relevant Act that was suspended or cancelled under the relevant Act; (d) whether an amount has been paid from the claim fund because the person did, or omitted to do, something that gave rise to the claim against the fund; (e) whether the person has been disqualified under a relevant Act from being— (i) the holder of a licence under the relevant Act; or (ii) the holder of registration under the relevant Act; or (iii) an executive officer of a corporation that holds a licence under the relevant Act; (f) for an individual— (i) the person's criminal history; and (ii) whether the person has been an insolvent under administration; and (iii) whether the person has been convicted of an offence against a relevant Act or the Administration Act; and (iv) whether the person is capable of satisfactorily performing a regulated activity under the licence; and (v) whether the person's name appears in the register of persons disqualified from managing corporations under the Corporations Act; Note— See the Corporations Act, section 1274AA. (g) for a corporation— (i) whether the corporation has been placed in receivership or liquidation; and (ii) whether an executive officer of the corporation has been an insolvent under administration; and (iii) whether the corporation or an executive officer of the corporation has been convicted of an offence against a relevant Act or the Administration Act; and (iv) whether each executive officer of the corporation is a suitable person to hold a licence; (h) another thing the chief executive may consider under this Act. (2) If the chief executive decides a person is not a suitable person to hold a licence, the chief executive must give the person an information notice about the decision within 14 days after the decision is made. (3) In this section— claim fund includes— (a) the claim fund under PAMDA; and (b) the auctioneers and agents fidelity guarantee fund continued in existence under the repealed Auctioneers and Agents Act 1971. relevant Act means this Act, an Agents Act, PAMDA or a corresponding law. 47 Public trustee is a suitable person The corporation sole called The Public Trustee of Queensland is taken to be a suitable person to hold a licence. 48 Chief executive of a department is a suitable person The chief executive of a department is taken to be a suitable person to hold a licence. Division 4 Eligibility for licence 49 Eligibility for licence (1) An individual is eligible to obtain a licence only if the individual is at least 18 years. (2) A corporation is eligible to obtain a licence only if a person in charge of the corporation's regulated business is a field agent. (3) The corporation sole called The Public Trustee of Queensland is taken to be eligible to obtain a licence. (4) The chief executive of a department is taken to be eligible to obtain a licence. Division 5 Issue of licence 50 Chief executive may issue or refuse to issue licence (1) The chief executive may decide to issue or refuse to issue a licence to an applicant. (2) The chief executive may decide to issue a licence to an applicant only if the chief executive is satisfied— (a) the applicant is a suitable person to hold a licence and, if the applicant intends carrying on a regulated business with others, each person with whom the applicant intends carrying on the business is a suitable person to hold a licence; and (b) the applicant is eligible to hold a licence; and (c) the application complies with section 41. (3) If the chief executive decides to refuse to issue the licence, the chief executive must give the applicant an information notice about the decision within 14 days after the decision is made. 51 Issue of licence to public trustee (1) The chief executive may issue a licence to the public trustee in the public trustee's capacity as a corporation sole in the name 'The Public Trustee of Queensland'. (2) A licence issued to the public trustee authorises an officer or employee of the public trustee to perform any activity authorised by the public trustee that the public trustee may perform under the licence. (3) To remove any doubt, it is declared that an officer or employee performing an activity authorised by the public trustee is not required to be licensed or registered under this Act to perform the activity. 52 Issue of licence to chief executive of department (1) The chief executive may issue a licence to the chief executive of a department in the name 'The Chief Executive of the (name of department)'. (2) If the name of the department changes during the term of the licence, the chief executive may reissue the licence in the department's new name. (3) The licence is taken to be issued to the chief executive of the department for the time being. (4) The chief executive of a department, as the holder of a licence, is taken to represent the State. (5) A licence issued to the chief executive of a department authorises an officer or employee of the department to perform any activity authorised by the chief executive that the chief executive may perform under the licence. (6) To remove any doubt, it is declared that an officer or employee performing an activity authorised by the chief executive is not required to be licensed or registered under this Act to perform the activity. 53 Conditions of licence (1) The chief executive may issue a licence on the conditions the chief executive considers necessary or desirable for the proper performance of the activities authorised by the licence. (2) Without limiting subsection (1), a condition may— (a) limit or prohibit the performance of an activity authorised under this Act or the Administration Act; or (b) require the holder of the licence to hold insurance of a kind and in an amount prescribed under a regulation. (3) If the chief executive decides to issue a licence on condition, the chief executive must give the applicant an information notice about the decision within 14 days after the decision is made. Division 6 Renewal and restoration of licences Subdivision 1 Renewal 54 Application for renewal (1) A field agent may apply for renewal of the agent's licence only before the licence expires. (2) The application must— (a) be made to the chief executive in the approved form; and (b) state the term of the licence being applied for; and (c) state the names and addresses of the field agent's business associates; and (d) be accompanied by— (i) the application fee prescribed under a regulation; and (ii) the licence renewal fee prescribed under a regulation; and (iii) if the field agent is required as a condition of the agent's licence to hold insurance, proof of the currency of the insurance; and (iv) if, before or when the application is made, a criminal history costs requirement is made of the field agent—the amount of the costs required to be paid. (3) The application must also be accompanied by— (a) an audit report for all trust accounts kept by the field agent during the relevant audit period; or (b) a statutory declaration that the field agent did not operate a trust account during the relevant audit period. (4) If requested by the chief executive, the application must, for a field agent who is an individual, also be accompanied by 2 recent colour photographs of the agent that are— (a) of a size prescribed under a regulation; and (b) certified as photographs of the agent in the way prescribed under a regulation. (5) The chief executive may, by written notice given to the field agent, require the agent to give the chief executive within a stated reasonable period information or material the chief executive reasonably believes is needed to consider the application. (6) The field agent is taken to have withdrawn the agent's application if the agent fails to comply with a request made under subsection (4) or requirement made under subsection (5). (7) In this section— relevant audit period, for a licence, means the audit period ending immediately before the licence's expiry date. 55 Chief executive may renew or refuse to renew licence (1) The chief executive must consider the application for renewal and may renew or refuse to renew the licence. (2) The chief executive may renew the licence only if the chief executive is satisfied— (a) the field agent is a suitable person to hold a licence and, if the agent carries on a regulated business with others, each person with whom the agent carries on the business is a suitable person to hold a licence; and (b) the field agent is eligible to hold the licence; and (c) the application complies with section 54. (3) If the chief executive decides to refuse the application, the chief executive must give the field agent an information notice about the decision within 14 days after the decision is made. 56 Licence taken to be in force while application for renewal is considered If an application is made under section 54, the field agent's licence is taken to continue in force from the day that it would, apart from this section, have expired until the application is decided under section 55 or withdrawn. Subdivision 2 Restoration 57 Application for restoration (1) If a person's licence expires, the person may apply for restoration of the licence. (2) The application must— (a) be made within 3 months after the expiry; and (b) be made to the chief executive in the approved form; and (c) state the term of the licence being applied for; and (d) state the names and addresses of the person's business associates; and (e) be accompanied by— (i) the application fee prescribed under a regulation; and (ii) the licence renewal fee prescribed under a regulation; and (iii) the licence restoration fee prescribed under a regulation; and (iv) if the person was required as a condition of the person's licence to hold insurance, proof of the currency of the insurance; and (v) if, before or when the application is made, a criminal history costs requirement is made of the person—the amount of the costs required to be paid. (3) The application must also be accompanied by— (a) an audit report about all trust accounts kept by the person during the relevant audit period; or (b) a statutory declaration that the person did not operate a trust account during the relevant audit period. (4) If requested by the chief executive, the application must, for an individual, also be accompanied by 2 recent colour photographs of the individual that are— (a) of a size prescribed under a regulation; and (b) certified as photographs of the individual in the way prescribed under a regulation. (5) The chief executive may, by written notice given to the person, require the person to give the chief executive within a stated reasonable period information or material the chief executive reasonably believes is needed to consider the application. (6) The person is taken to have withdrawn the person's application if the person fails to comply with a request made under subsection (4) or requirement made under subsection (5). (7) In this section— relevant audit period, for a licence, means the audit period ending immediately before the licence's expiry date. 58 Chief executive may restore or refuse to restore licence (1) The chief executive must consider the application for restoration and may restore or refuse to restore the licence. (2) The chief executive may restore the licence only if the chief executive is satisfied— (a) the applicant is a suitable person to hold a licence and, if the applicant carries on, or intends to carry on, a regulated business with others, each person with whom the applicant carries on, or intends to carry on, the business, is a suitable person to hold a licence; and (b) the applicant is eligible to hold the licence; and (c) the application complies with section 57. (3) If the chief executive decides to refuse the application, the chief executive must give the applicant an information notice about the decision within 14 days after the decision is made. 59 Licence taken to continue in force for particular periods (1) If an application is made under section 57, the applicant's licence is taken to continue in force from the day that it would, apart from this section, have expired until the application is decided under section 58 or withdrawn. (2) If the chief executive restores the licence— (a) the licence is taken to have been renewed on the day it would, apart from this section, have expired (the initial expiry date); and (b) to remove any doubt, a thing done during the period starting on the initial expiry date and ending on the day the licence is restored is taken to have been as validly done as it would have been if the licence had been renewed immediately before the initial expiry date. Division 7 Dealings with licences 60 Transfer of licence prohibited A licence can not be transferred. 61 Amendment of licence conditions (1) The chief executive may amend the conditions of a licence— (a) on the application of the holder of the licence; or (b) on the order of QCAT; or Note— QCAT may deal with the conditions of a licence under section 116. (c) on the chief executive's own initiative. (2) An application under subsection (1)(a) must be made in the approved form and be accompanied by the application fee prescribed under a regulation. (3) Before granting the application, the chief executive must be satisfied the amendment of the condition is necessary or desirable for the proper performance of the activities authorised by the licence. (4) If the chief executive decides to refuse the application, the chief executive must give the applicant an information notice about the decision within 14 days after the decision is made. (5) Before making an amendment under subsection (1)(c), the chief executive must— (a) give written notice to the holder of the licence— (i) of the particulars of the proposed amendment; and (ii) that the holder may make written submissions to the chief executive about the proposed amendment before a stated day, not later than 14 days after the notice is given to the holder; and (b) have regard to submissions made to the chief executive by the holder before the stated day. (6) Subsection (5) does not apply if the chief executive decides that the amendment must be made urgently— (a) to avoid potential claims against the claim fund; or (b) to ensure compliance with this Act or the Administration Act. (7) If the chief executive decides to amend the conditions of a licence under subsection (1)(c), the chief executive must give the holder of the licence an information notice about the decision within 14 days after the decision is made. (8) An amendment takes effect— (a) on the day written notice of the amendment is given to the holder of the licence; or (b) if a later day is stated in the notice, on the stated day. 62 Return of licence for amendment or replacement (1) The chief executive may require the holder of a licence to produce the licence for amendment or replacement within a stated period of not less than 14 days if the chief executive intends to— (a) amend the conditions of the licence under section 61; or (b) replace the licence under section 75(5). (2) The holder must comply with a requirement under subsection (1), unless the holder has a reasonable excuse. Maximum penalty—100 penalty units. 63 Return of licence when suspended or cancelled A person whose licence has been suspended or cancelled must, unless the person has a reasonable excuse, return the licence to the chief executive— (a) if the licence was suspended under section 67—within 14 days after the agent receives an information notice about the suspension; or (b) if the licence was cancelled under section 68—within 14 days after the happening of an event mentioned in section 68; or (c) otherwise—within 14 days after the suspension or cancellation takes effect. Maximum penalty—100 penalty units. 64 Surrender of licence (1) A field agent may surrender the agent's licence by giving written notice, and returning the licence, to the chief executive. (2) A licence surrendered under this section stops having effect on the day it is surrendered. 65 Licence may be deactivated (1) A field agent may ask the chief executive to deactivate the agent's licence. (2) A request under subsection (1) must be made in the approved form and be accompanied by the field agent's licence and the fee prescribed under a regulation. (3) The licence is taken to be deactivated when the request, the licence and the prescribed fee are received by the chief executive under subsection (2). (4) A licence that is deactivated does not authorise the holder of the licence to perform an activity under the authority of the licence. (5) The deactivation of a licence under this section does not— (a) affect the term of the licence; or (b) entitle the holder of the licence to a refund of fees relating to the licence for the balance of the licence's term. (6) The holder of a deactivated licence may apply to have the licence renewed under section 55 or restored under section 58 as a deactivated licence at a reduced fee prescribed under a regulation. 66 Deactivated licence may be reactivated (1) The holder of a deactivated licence may ask the chief executive to reactivate the licence. (2) If the licence has been deactivated for 5 years or more, the chief executive may reactivate the licence only if the chief executive is satisfied— (a) the holder is a suitable person to hold a licence and, if the holder carries on, or intends to carry on, a regulated business with others, each person with whom the holder carries on, or intends to carry on, the business, is a suitable person to hold a licence; and (b) the holder is eligible to hold the licence. (3) A request under subsection (1) must be made in the approved form and be accompanied by the fee prescribed under a regulation. (4) The chief executive may, by written notice given to the holder, require the holder to give the chief executive within a stated reasonable period information or material the chief executive reasonably believes is needed to consider the request. (5) The holder is taken to have withdrawn the holder's request if the holder fails to comply with a requirement made under subsection (4). Division 8 Immediate suspension and cancellation of licences 67 Immediate suspension (1) This section applies if— (a) the chief executive reasonably believes that a field agent's licence was obtained, or renewed or restored, because of materially incorrect or misleading information; or (b) the chief executive reasonably believes that an irregularity or deficiency exists in a field agent's trust account; or (c) the chief executive reasonably believes a field agent has failed to file an audit report as required under the Administration Act, section 35; or (d) a receiver is appointed under the Administration Act, section 47, over property— (i) held by a field agent; or (ii) held by another person for a field agent; or (iii) recoverable by a field agent; or (e) the chief executive reasonably believes that a field agent— (i) has contravened or is contravening this Act or the Administration Act; or (ii) has contravened PAMDA; or (iii) is likely or proposing to engage in conduct that would contravene this Act or the Administration Act. (2) The chief executive may, whether or not proceedings have been started under part 9, division 3— (a) suspend the field agent's licence; or (b) without limiting paragraph (a), for subsection (1)(b), suspend a licence held by an employee of the field agent if the chief executive reasonably believes the employee is responsible in any way for the irregularity or deficiency in the agent's trust account. (3) If the chief executive suspends a licence for a reason mentioned in subsection (1)(a), (b), (d) or (e), the licence may be suspended for the period, of not more than 28 days, and on the conditions, the chief executive decides. (4) If the chief executive suspends the licence for the reason mentioned in subsection (1)(c), the licence is suspended until whichever of the following happens first— (a) the field agent files the required audit report; (b) an application to QCAT for the cancellation of the licence is heard and decided; (c) the licence is cancelled or otherwise ends under this Act. (5) The chief executive must give the field agent an information notice about the suspension within 14 days after suspending the field agent's licence. 68 Immediate cancellation A field agent's licence is cancelled on the happening of any of the following events— (a) the agent is convicted of a serious offence; (b) if the agent is an individual, the agent becomes an insolvent under administration; (c) if the agent is a corporation, the agent is wound up or deregistered under the Corporations Act. Division 9 Substitute licences 69 Appointment of substitute (1) This section applies to a principal field agent who is an individual. (2) The field agent may appoint an adult as the agent's substitute for a period of not more than 30 days only if— (a) the adult consents to the appointment; and (b) if the agent is required as a condition of the agent's licence to hold insurance, the adult is covered by the insurance or holds insurance that complies with the requirements of the condition. (3) The field agent must ensure— (a) an appointment under subsection (2) and the substitute's consent to the appointment are in writing and state the period of appointment; and (b) the appointment, consent and evidence of any insurance the substitute is required to have are kept at the agent's registered office. Maximum penalty—100 penalty units. (4) If the field agent intends to appoint an adult as the agent's substitute for a period of more than 30 days, the agent must apply to the chief executive in the approved form for the appointment or the extension of the appointment of an adult (nominated person) as the agent's substitute. Maximum penalty—200 penalty units. (5) If the field agent is a person for whom an administrator has been appointed under the Guardianship and Administration Act 2000 or is deceased, the agent's representative may make the application under subsection (4). (6) The application must be accompanied by— (a) the nominated person's signed consent to the appointment; and (b) enough information about the nominated person to enable the chief executive to decide whether the person— (i) is a suitable person to hold a licence; and (ii) if the field agent is required as a condition of the agent's licence to hold insurance, is covered by the insurance or holds insurance that complies with the requirements of the condition; and (c) the application fee prescribed under a regulation; and (d) if, before or when the application is made, a criminal history costs requirement is made of the field agent—the amount of the costs required to be paid. (7) In this section— representative, of a field agent, means— (a) for an agent for whom an administrator has been appointed under the Guardianship and Administration Act 2000—the agent's administrator; or (b) for a deceased agent—the agent's personal representative. 70 Chief executive may appoint or refuse to appoint substitute (1) The chief executive may appoint or refuse to appoint a nominated person mentioned in section 69(4) as a field agent's substitute. (2) The chief executive may appoint the nominated person only if the chief executive is satisfied that the person— (a) is, under division 3, a suitable person to hold a licence; and (b) if a condition of the field agent's licence requires the agent to hold insurance—is covered by the insurance or holds insurance that complies with the requirements of the condition. (3) An appointment under this section may be made subject to the conditions the chief executive considers appropriate. (4) The chief executive must give written notice of the appointment to the field agent and the substitute. (5) If the chief executive decides to refuse the application or to impose conditions on the appointment, the chief executive must give the field agent an information notice about the decision within 14 days after the decision is made. 71 Substitute (1) A substitute appointed under section 69(2) or 70— (a) must act as substitute for the field agent for whom the substitute is appointed; and (b) is taken to be the field agent during the period of appointment. (2) A field agent for whom a substitute has been appointed under section 69(2) or 70 must not act under the authority of the agent's licence while the appointment of the substitute continues. Maximum penalty—200 penalty units. (3) The appointment of the substitute ends if— (a) the period of appointment ends; or (b) the field agent gives written notice to end the appointment from a date stated in the notice— (i) for a substitute appointed under section 69(2)—to the substitute; or (ii) for a substitute appointed under section 70—to the chief executive and the substitute; or (c) the substitute gives written notice to end the appointment from a date stated in the notice— (i) for a substitute appointed under section 69(2)—to the field agent making the appointment; or (ii) for a substitute appointed under section 70—to the chief executive and the field agent who applied for the appointment; or (d) for a substitute appointed under section 70—the chief executive revokes the substitute's appointment; or (e) the field agent's licence is suspended or cancelled; or (f) the field agent stops carrying on a regulated business. 72 Limitation on period of substitution (1) A principal field agent may not appoint a substitute for more than 12 weeks in any period of 12 months. (2) The chief executive may not appoint a substitute for any principal field agent for more than 26 weeks in any period of 12 months. Division 10 General provisions about licences 73 Form of licence (1) A licence must be in the approved form. (2) However, the chief executive may approve— (a) a form of licence for office display purposes; and Example— a licence in the form of a certificate that may be framed and displayed in an office (b) a form of licence for personal identification purposes. Example— a licence in the form of a small photo identification card suitable for carrying easily on one's person (3) The licence must contain the following— (a) the name of the holder of the licence; (b) the date of issue of the licence; (c) the expiry date of the licence; (d) for a licence for personal identification purposes, a recent photograph of the holder of the licence; (e) any other particulars prescribed under a regulation. 74 Term of licence (1) A licence may be issued for a 1-year or 3-year term. (2) However, a regulation may prescribe the circumstances under which a licence may be issued or renewed for a shorter term. Example— A licence may be issued for a shorter term to ensure multiple licences held by the same person expire on the same day. 75 Replacement licences (1) A field agent may apply to the chief executive for the replacement of a lost, stolen, destroyed or damaged licence. (2) The application must be made in the approved form. (3) The chief executive must grant the application if the chief executive is satisfied the licence has been lost, stolen, destroyed or damaged in a way to require its replacement. (4) If the chief executive grants the application, the chief executive must i