Queensland: Property Occupations Act 2014 (Qld)

Property Occupations Act 2014 An Act to provide for the regulation of the activities, licensing and conduct of property agents and resident letting agents and their employees and to protect consumers against particular undesirable practices Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Property Occupations Act 2014. 2 Commencement This Act, other than part 16, commences on a day to be fixed by proclamation. 3 Act binds all persons (1) This Act binds all persons, including the State and, as far as the legislative power of the 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. Note— See also the modifying provision for this Act stated in the Fair Trading Inspectors Act 2014, section 6. Division 2 Exemptions 5 Particular auctions (1) Parts 3 and 4 and part 6, divisions 1 and 2 to the extent they relate to a property agent do not apply to— (a) a sale made under a rule, order, or judgment of the Supreme Court or District Court; or (b) a sale made by a person obeying an order of, or a process issued by, a court, judge or justice, or the registrar of the State Penalties Enforcement Registry for the recovery of a fine, penalty or award; or (c) a sale of an animal lawfully seized and sold under the Animal Care and Protection Act 2001 or another law about seizing or impounding an animal; or (d) a sale conducted for a charity, a religious denomination or an organisation formed for a community purpose, within the meaning of the Collections Act 1966 (relevant entity) if— (i) the person conducting the sale does not receive from the relevant entity a reward for the person's services; and (ii) amounts received from the sale are paid directly to an officer or employee of the relevant entity who is authorised by the relevant entity to receive and deal with the amounts. (2) In this section— sale means a sale, attempted sale or an offering for sale or resale, by way of auction. 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 licence or former licence to perform an 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 licence or former licence to perform an 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 licence or former licence to perform an activity; (d) a person appointed under the Administration Act as a receiver for property of an entity that is or was authorised under a licence or former licence to perform an activity; (e) a person appointed under the Bankruptcy Act 1966 (Cwlth) as the trustee in bankruptcy, or the Official Receiver, for an individual who is or was authorised under a licence or former licence to perform an activity. (2) The appointee is exempt from the provisions mentioned in subsection (3) while performing the activity in relation to a business that is or was authorised to be carried on under— (a) for a licence that is in force— the licence; or (b) for a former licence that is not in force—the former licence immediately before it stopped being in force. (3) For subsection (2), the provisions are— (a) sections 84 and 85; and (b) part 3, division 2; and (c) sections 97, 100 and 102. (4) In this section— former licence means a licence that was previously in force. person appointed as the trustee in bankruptcy, for an individual, includes the Official Trustee in Bankruptcy under the Bankruptcy Act 1966 (Cwlth) if the Official Trustee is the trustee in bankruptcy for the individual. 7 Related entities An entity (exempt entity) is exempt from this Act if the entity— (a) carries on the business of a property agent or resident letting agent in relation to assets, other than residential property, of— (i) another entity the majority of which is directly or indirectly owned by the exempt entity; or (ii) another entity, if the majority of both entities is directly or indirectly owned by the same persons; or (iii) another entity that directly or indirectly owns the majority of the exempt entity; and (b) is a property agent or resident letting agent only because of the business carried on by it in relation to the assets; and (c) when carrying on that business as a property agent or resident letting agent discloses in writing in any advertising or contract relating to the assets its relationship to the owner of the assets. 8 Large scale non-residential property transactions or holdings (1) A person acting as a property agent for the sale or exchange of real property, other than residential property or rural land, is exempt from this Act for the transaction if— (a) the real property for the transaction has— (i) a total gross floor area of at least the area prescribed under a regulation; or (ii) a total estimated value of at least the amount prescribed under a regulation; or (b) each party to the transaction owns real property, other than the real property for the transaction, that has— (i) a total gross floor area of at least the area prescribed under a regulation; or (ii) a total estimated value of at least the amount prescribed under a regulation. (2) A person acting as a property agent or resident letting agent for the letting of real property or collecting rents for real property, other than residential property or rural land, is exempt from this Act if the person is acting on behalf of an entity that owns real property that has— (a) a total gross floor area of at least the area prescribed under a regulation; or (b) a total estimated value of at least the amount prescribed under a regulation. (3) To remove any doubt, it is declared that, without limiting subsection (2), the subsection applies if the person is acting as a property agent or resident letting agent for 2 or more entities engaged in a joint venture arrangement and the entities, individually or collectively, own real property that has— (a) a total gross floor area of at least the area prescribed under a regulation; or (b) a total estimated value of at least the amount prescribed under a regulation. (4) In this section— estimated value, of real property, means the estimate, made on reasonable grounds by the person acting as— (a) a property agent for the sale of the property, of the price payable for the property; or (b) a property agent for the exchange of the property, of the value of the property; or (c) a property agent or resident letting agent for the letting of the property or collecting rents for the property, of the value of the property. rural land means land used, intended to be used, or apparently intended to be used, for gain or profit, for grazing livestock or cultivating crops. 9 Other exemptions from this Act A regulation may exempt from this Act a class of person who acts as a property agent or resident letting agent for an entity if the class of person is acting as a property agent or resident letting agent for another entity related to the entity. 10 Financial institutions and trustee companies (1) Parts 3 and 4 and part 6, divisions 1 and 2 to the extent they relate to a property agent do 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. 11 Non-profit corporations (1) A non-profit corporation is exempt from parts 3 and 4 and part 6, divisions 1 and 2 if— (a) the corporation provides or locates— (i) affordable rental housing under an affordable housing scheme; or (ii) approved supported accommodation; and (b) the providing or locating of the housing or accommodation is funded or managed by the Commonwealth, a State or a local government. (2) Subsection (1) does not apply if the non-profit corporation is otherwise carrying on the business of a resident letting agent or property agent. (3) To remove any doubt, it is declared that a corporation does not stop being a non-profit corporation only because it receives a reward for providing its services to another non-profit corporation. (4) In this section— affordable housing scheme see the Residential Tenancies and Rooming Accommodation Act 2008, schedule 2. approved supported accommodation see the Residential Tenancies and Rooming Accommodation Act 2008, schedule 2. non-profit corporation means a corporation formed for a purpose other than the purpose of making a profit. Division 3 Objects of Act 12 Objects (1) The objects of this Act are— (a) to provide a system for licensing and regulating persons as property agents or resident letting agents and for registering and regulating persons as real estate salespersons 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 the promotion of residential property. (2) The objects are to be achieved by— (a) ensuring— (i) only suitable persons with appropriate qualifications are licensed or registered; and (ii) persons who carry on business or are in charge of a licensee's business at a place under the authority of a licence maintain close personal supervision of the way the business is carried on; and (b) providing— (i) protection for consumers in their dealings with licensees and their employees; and (ii) a legislative framework within which persons performing activities for licensees may lawfully operate; and (c) regulating fees and commissions that can be charged for particular transactions; and (d) providing protection for consumers in their dealings with marketeers; and (e) providing for the enforcement of matters involving marketeers; and (f) providing increased flexibility in enforcement measures through injunctions, undertakings, and, for contraventions by marketeers, preservation of assets and civil penalties; and (g) 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 disciplinary matters rests with QCAT. Division 4 Interpretation 13 Definitions The dictionary in schedule 2 defines particular words used in this Act. 14 Who is an auctioneer An auctioneer is a person who holds an auctioneer licence authorising the performance of the activities mentioned in section 25. 15 Who is a property agent A property agent is an auctioneer or a real estate agent. 16 Who is a real estate agent A real estate agent is a person who holds a real estate agent licence authorising the performance of the activities mentioned in section 26. 17 Who is a resident letting agent A resident letting agent is a person who holds a resident letting agent licence authorising the performance of the activities mentioned in section 27. 18 Meaning of completes a residential property sale (1) A person completes a residential property sale if a residential property in which the person has an interest is sold, whether or not a transfer to the purchaser under the sale has been registered. (2) However, the person is not to be taken to have completed a residential property sale if— (a) the person appointed a property agent to sell the interest in the residential property on the person's behalf and the property agent is the effective cause of the sale; or (b) the person held the interest in the residential property as— (i) a personal representative; or (ii) an administrator under the Guardianship and Administration Act 2000; or (iii) a beneficiary in, or a trustee of, a deceased person's estate; or (iv) a mortgagee; or (c) the person is a corporation and the corporation sold the corporation's interest in the residential property to a related body corporate of the corporation; or (d) the interest in the residential property is sold under a court order. (3) In this section— related body corporate see the Corporations Act, section 9. 19 Meaning of in charge (1) A person is in charge of a licensee's business at a place where the licensee carries on business only if the person personally supervises, manages or controls the conduct of the licensee's business at the place. (2) In this section— licensee's business means the licensee's business carried on under the authority of the licensee's licence. 20 Meaning of open listing An open listing is a written agreement entered into between a person (seller) and a property agent (selling agent) under which the seller appoints the selling agent, in accordance with the terms of the agreement, to sell stated property and under the agreement— (a) the seller retains a right— (i) to sell the seller's property during the term of the agreement; or (ii) to appoint additional property agents as selling agents to sell the property on terms similar to those under the agreement; and (b) the appointed selling agent is entitled to remuneration only if he or she is the effective cause of sale; and (c) the appointment of the selling agent can be ended, at any time, by either— (i) the seller giving the selling agent written notice of the ending of the appointment; or (ii) the selling agent giving the seller written notice of the ending of the appointment. 21 Meaning of residential property Residential property is real property that is used, or is intended to be used, for residential purposes but does not include real property that is used primarily for the purposes of industry, commerce or primary production. 22 Meaning of unsolicited invitation (1) An unsolicited invitation to a person to attend a property information session includes an invitation— (a) addressed personally to the person and sent to the person's residential, business, postal or email address; or (b) made by telephoning the person, or by another personal approach to the person. (2) An invitation to a person to attend a property information session is not an unsolicited invitation if it is— (a) made at the person's request, other than in response to an approach of a kind mentioned in subsection (1)(b); or (b) made to the public generally or a section of the public by media advertisement; or (c) addressed non-specifically and sent to the person's residential, business, postal or email address. Examples of invitations addressed non-specifically— • 'The owner' • 'The householder' 23 Difference between exclusive agency and sole agency (1) The only difference between an exclusive agency and a sole agency is the extent of the entitlement of a selling agent to receive an agreed commission or other reward on the sale of particular property. (2) Under an exclusive agency, a selling agent is entitled, on the sale of particular property and in accordance with the terms of an agreement with the seller of the property, to receive an agreed commission or other reward, whether or not the selling agent is the effective cause of the sale. (3) However, if the sale was subject to a sole agency, the selling agent would not be entitled to the commission or other reward if the seller was the effective cause of the sale. Example— Facts—S is the owner of a place of residence that S appoints R to sell. B buys the place of residence. Assume for the example that in the following circumstances the following persons are the effective cause of the sale— • case 1—R • case 2—X (another property agent) • case 3—M (S's mother) • case 4—S. If the selling agent is appointed under an exclusive agency, R is entitled to an agreed commission or other reward in accordance with the terms of R's agreement with S in cases 1, 2, 3 and 4. If the selling agent is appointed under a sole agency, R is entitled to an agreed commission or other reward in accordance with the terms of R's agreement with S only in cases 1, 2 and 3. (4) In this section— seller, of property, means the person authorising the sale of the property. selling agent, of property, means a property agent appointed under a written agreement under this Act by the seller to sell the property. Part 2 Licensing Division 1 Categories of licence 24 Categories of licence The chief executive may issue the following categories of licence under this Act— (a) auctioneer licence; (b) real estate agent licence; (c) resident letting agent licence. Note— See also section 28. Division 2 Auctioneer's authorisation 25 What an auctioneer licence authorises (1) An auctioneer licence authorises the holder of the licence to— (a) sell or attempt to sell or offer for sale or resale any real property, or an interest in real property, by way of auction as an agent for others for reward; and (b) sell the property or interest by any means during the auction period; and (c) sell or attempt to sell or offer for sale or resale goods by way of auction if the sale or resale is directly connected with a sale by auction of a place of residence or land performed by the auctioneer. (2) For subsection (1)(c), an auction of goods may be directly connected with a sale by auction of a place of residence or land despite the auction of the goods being conducted separately from the auction of the place of residence or land. Example— An auction of a place of residence followed by an auction of the contents of the residence. (3) An auctioneer may perform an activity mentioned in subsection (1)— (a) in the carrying on of a business, either alone or with others; or (b) as an employee of a property agent. (4) In this section— auction period, for an auctioneer for the sale of real property, means the period for which the auctioneer is appointed under section 102 or otherwise authorised or permitted under this Act or another Act to sell the property. Division 3 Real estate agent's authorisation and responsibility 26 What a real estate agent licence authorises (1) A real estate agent licence authorises the holder of the licence to perform the following activities as an agent for others for reward— (a) to buy, sell (other than by auction), exchange or let real property or interests in real property; (b) to buy, sell (other than by auction), exchange, or let businesses or interests in businesses; (c) to negotiate for the buying, selling, exchanging, or letting of something mentioned in paragraph (a) or (b); (d) to collect rents. (2) A real estate agent may perform the activities mentioned in subsection (1) in the carrying on of a business, either alone or with others, or as an employee of someone else. Division 4 Resident letting agent's authorisation 27 What a resident letting agent licence authorises (1) A resident letting agent licence authorises the holder of the licence to perform the following activities as an agent for others for reward— (a) letting lots in a building complex; (b) collecting rents for lots in a building complex. (2) A resident letting agent may perform the activities in the carrying on of a business, either alone or with others, or as an employee of someone else. Division 5 Limited property agent licence 28 Limited property agent licence (1) The chief executive may issue a property agent licence that limits, as prescribed under a regulation, the activities that may otherwise be performed under the licence. (2) To be eligible for a limited property agent licence, an applicant for the licence must have the educational qualifications approved by the chief executive for obtaining the licence. Note— The qualifications are stated on the department's website. Division 6 How to obtain a licence 29 Steps involved in obtaining a licence (1) A person who wishes to obtain a licence must be a suitable person to hold a licence under division 8. (2) The person must apply for the licence by— (a) giving the chief executive an application showing, among other things, the person is eligible for 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 applicant—the amount of the costs required to be paid; and (c) giving the chief executive the other information required under section 31. (3) 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 under this Act; and (b) the person's eligibility for the licence. Division 7 Applications for licence and particular request requirement 30 Application for licence (1) An applicant for a licence must— (a) apply to the chief executive in the approved form; and (b) state the category of licence being applied for; and (c) state the term of the licence being applied for; and (d) establish the applicant's eligibility for the category of licence being applied for; and (e) state the names and addresses of the applicant's business associates; and (f) 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. 31 Applicant must state business address (1) The applicant must also state in the applicant's application— (a) if the applicant intends carrying on business under the licence immediately after the issue of the licence—the place or places in Queensland where the applicant proposes to carry on business under the licence; or (b) if the applicant does not intend carrying on business under the licence 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 (business address); and (ii) if the applicant intends to be a person in charge of a licensee's business at a place of business—the name of the applicant's employer and the address of the place of business where the applicant is to be in charge (also a business address). Examples of capacity in which activities may be performed— • person in charge of a corporation's business • licensed employee of a licensee Example of business address of an employed licensee— the address of the person's employer's place of business where the person generally reports for work (2) If the applicant intends to carry on business under the licence 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 must be a place where a document can be served personally. (4) A place of business or an address must not be a post office box. 32 Particular persons can not make application (1) A disqualified person can not make an application for a licence during the period for which the disqualified 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 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 corporation. (3) A person who made an application for a licence that was refused can not make an application for a licence of the same category as the licence for which the person applied— (a) for 3 months after the day the chief executive gives the person an information notice for the decision; 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 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 corporation. (5) In this section— disqualified person means a person who, as a consequence of an order made by QCAT under section 186 or 188 or a court under section 227 or 228, is disqualified from holding a licence. 33 Requirement to give information or material about application or request (1) This section applies to each of the following— (a) an applicant for a licence; (b) an applicant for renewal of a licence; (c) an applicant for restoration of a licence; (d) an applicant for the appointment or extension of the appointment of a nominated person mentioned in section 66(3) or 67(4) as a licensee's substitute licensee; (e) a licensee who has asked the chief executive to reactivate the licensee's licence. (2) 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 considers is needed to decide the application or request. Example of that information or material— information or material the chief executive reasonably considers is needed to establish the applicant's or licensee's suitability for the licence (3) The applicant or licensee is taken to have withdrawn the application or request if, within the stated reasonable period, the applicant or licensee fails to comply with the chief executive's requirement. Division 8 Suitability of applicants and licensees 34 Suitability of applicants and licensees—individuals (1) An individual is not a suitable person to hold a licence if the individual 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 registration certificate; or (d) a person the chief executive decides under section 36 is not a suitable person to hold a licence. (2) An individual who is not a suitable person to hold a licence can not hold a licence. 35 Suitability of applicants and licensees—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 36 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— (a) is an insolvent under administration; or (b) has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; or (c) is currently disqualified from holding a licence or registration certificate; or (d) is a person the chief executive decides under section 36 is not a suitable person to hold a licence. (3) A corporation that is not a suitable person to hold a licence can not hold a licence. 36 Chief executive must consider suitability of applicants and licensees (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 certificate under a relevant Act that was suspended or cancelled under the relevant Act; (d) whether an amount has been paid from the 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 the holder of a licence, registration certificate or similar authorisation; (f) whether the person has been disqualified from managing corporations under the Corporations Act; (g) whether, within the preceding 5 years, QCAT, the former tribunal or the District Court has made an order under this Act or PAMDA adverse to the person; (h) for an individual— (i) the individual's criminal history; and (ii) whether the individual has been an insolvent under administration; and (iii) whether the individual has been convicted of an offence against a relevant Act or the Administration Act; and (iv) whether the individual is capable of satisfactorily performing the activities of a licensee; and (v) whether the individual's name appears in the register of persons disqualified from managing corporations under the Corporations Act; Note— See the Corporations Act, section 1274AA (Register of disqualified company directors and other officers). (i) 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; (j) 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 making the decision. (3) In this section— fund includes the claim funds under PAMDA and the repealed Auctioneers and Agents Act 1971. relevant Act means this Act, an Agents Act, PAMDA or a corresponding law. 37 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. 38 Chief executive of department is a suitable person The chief executive of a department is taken to be a suitable person to hold a licence. 39 Defence Housing Australia is a suitable person Defence Housing Australia is taken to be a suitable person to hold a licence. 40 Investigations about suitability of applicants and licensees (1) The chief executive may make investigations about the following persons to help the chief executive decide whether a person is a suitable person to hold a licence— (a) an applicant mentioned in section 33(1) or a licensee; (b) if the applicant or licensee intends carrying on, or carries on, business in partnership or in conjunction with others—each member of the partnership or each person with whom the applicant or licensee intends carrying on, or carries on, business in partnership or in conjunction; (c) if the applicant or licensee is a corporation—the corporation's executive officers; (d) a business associate of the applicant or licensee. (2) Without limiting subsection (1), the chief executive may ask the commissioner of the police service for a report about the criminal history of any of the persons. (3) The commissioner must give the report to the chief executive. (4) However, the report is required to contain only criminal history in the commissioner's possession or to which the commissioner has access. (5) If the person's criminal history includes a conviction recorded against the person, the commissioner's report must be written. (6) In this section— applicant includes a nominated person mentioned in section 66(3) or 67(4). 41 Notice of change in criminal history (1) This section applies if the commissioner of the police service reasonably suspects the criminal history of either of the following persons has changed— (a) a person who is the holder of a licence; (b) a person who is a nominated person mentioned in section 66(3) or 67(4) appointed as a substitute licensee or as a substitute real estate salesperson. (2) The commissioner may notify the chief executive the person's criminal history has changed. (3) The notice must state the following— (a) the person's name and any other name the commissioner believes the person may use or may have used; (b) the person's date and place of birth; (c) a brief description of the nature of the offence giving rise to the conviction or charge to which the change relates. (4) The chief executive may confirm the commissioner's suspicions under subsection (1). (5) For a person who does not have a criminal history, there is taken to be a change in the person's criminal history if the person acquires a criminal history. (6) In this section— criminal history, in relation to a person, includes a charge of an offence laid against a person that has not been dismissed. offence includes alleged offence. 42 Costs of criminal history report (1) The chief executive may require an applicant mentioned in section 33(1) or a licensee to pay the reasonable, but no more than actual, costs of obtaining a report under section 40 about— (a) the applicant or licensee; or (b) if the applicant or licensee intends carrying on, or carries on, business in partnership or in conjunction with others—each person with whom the applicant or licensee intends carrying on, or carries on, business in partnership or in conjunction; or (c) if the applicant or licensee is a corporation—the corporation's executive officers; or (d) a business associate of the applicant or licensee; or (e) if the applicant has made an application under section 66(3) or 67(4)—the person nominated by the applicant under section 66(3) or 67(4). (2) The requirement is a criminal history costs requirement. (3) The chief executive may notify the applicant or licensee of the requirement to pay a criminal history costs requirement— (a) in the approved form; or (b) on the department's website; or (c) in a written notice given by the chief executive to the applicant or licensee. (4) If the criminal history costs requirement is made in a written notice given by the chief executive to the applicant or licensee, the notice must include a requirement for the costs to be paid within a stated reasonable period. (5) The applicant or licensee is taken to have withdrawn the application if, within the stated reasonable period, the applicant or licensee fails to comply with the chief executive's requirement to pay the criminal history costs requirement. (6) The chief executive must refund to the applicant or licensee an amount paid under the requirement if— (a) the chief executive refuses the application without asking for the report; or (b) the applicant or licensee withdraws the application before the chief executive asks for the report. (7) In this section— applicant includes proposed applicant. 43 Use of information obtained under s 40 or 41 (1) Subsection (2) applies to the chief executive in considering information about a person obtained under section 40 or 41. (2) Information about a conviction of the person may be used only for making a decision as to whether the person is, or continues to be, a suitable person to hold a licence. (3) Subsection (4) applies to the chief executive in considering information about a person obtained under section 41. (4) Information about a charge against the person may not be relied on as a basis for making a decision as to whether the person is, or continues to be, a suitable person to hold a licence. 44 Confidentiality of criminal history (1) A public service employee performing functions under this Act must not, directly or indirectly, disclose to anyone else— (a) a report about a person's criminal history, or information contained in the report, given under section 40; or (b) any of the contents of a notice given under section 41(2). Maximum penalty—100 penalty units. (2) However, the person does not contravene subsection (1) if— (a) disclosure of the report or information to someone else is authorised by the chief executive to the extent necessary to perform a function under or relating to this Act; or (b) the disclosure is otherwise required or permitted by law. (3) The chief executive must destroy the following as soon as practicable after considering the person's suitability to hold a licence— (a) a written report about the person's criminal history; (b) a notice given under section 41(2) about the person. Division 9 Eligibility for licence Subdivision 1 Property agent licence 45 Eligibility for property agent licence (1) An individual is eligible to obtain a property agent licence only if the individual— (a) is at least 18 years; and (b) has the educational or other qualifications generally approved by the chief executive for a property agent licence. Note— The qualifications are stated on the department's website. (2) An individual is to be taken to satisfy the requirement mentioned in subsection (1)(b) if the chief executive is satisfied the individual— (a) has a comparable qualification to the qualification mentioned in subsection (1)(b); or (b) within 2 years before the day the individual's application for a property agent licence is received by the chief executive— (i) either— (A) if the licence applied for is an auctioneer licence—has been licensed as an auctioneer; or (B) if the licence applied for is a real estate agent licence—has been licensed as a real estate agent; or (ii) has been the holder of a comparable licence under PAMDA. (3) A corporation is eligible to obtain an auctioneer licence only if a person in charge of the corporation's auctioneer business is an auctioneer. (4) A corporation is eligible to obtain a real estate agent licence only if a person in charge of the corporation's real estate agency business is a real estate agent. Subdivision 2 Resident letting agent licence 46 Eligibility for resident letting agent licence (1) An individual is eligible to obtain a resident letting agent licence for a building complex only if the individual— (a) is at least 18 years; and (b) has the educational or other qualifications generally approved by the chief executive for a resident letting agent licence. Note— The qualifications are stated on the department's website. (2) An individual is taken to satisfy the requirement mentioned in subsection (1)(b) if the chief executive is satisfied the individual— (a) has a comparable qualification to the qualification mentioned in subsection (1)(b); or (b) within 2 years before the day the individual's application for a resident letting agent licence is received by the chief executive— (i) has been licensed as a resident letting agent or real estate agent; or (ii) has been the holder of a comparable licence under PAMDA. (3) A corporation is eligible to obtain a resident letting agent licence only if a person in charge of the corporation's business is a resident letting agent. Subdivision 3 Particular government entities 47 Public trustee is eligible for licence The public trustee as a corporation sole is taken to be eligible for a licence. 48 Chief executive of department is eligible for licence The chief executive of a department is taken to be eligible for a licence. 49 Defence Housing Australia is eligible for licence Defence Housing Australia is taken to be eligible for a licence. Division 10 Issue of licences 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— (i) if the applicant intends carrying on business in partnership or in conjunction with others—each member of the partnership or each person with whom the applicant intends carrying on business in conjunction is a suitable person to hold a licence; and (ii) if the applicant is a corporation—each executive officer of the corporation is a suitable person to hold a licence; and (b) the applicant is eligible for a licence of the category of licence being applied for; and (c) the application is made under sections 30 and 31. (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 making the decision. 51 Licence—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 Licence—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) The licence is taken to be issued to the chief executive for the time being of the department. (3) The chief executive of a department, as a licensee, is taken to represent the State. (4) A licence issued to the chief executive of a department authorises an officer or employee of the department of which the chief executive is chief executive to perform any activity authorised by the chief executive that the chief executive may perform under the licence. (5) 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 Licence—Defence Housing Australia (1) The chief executive may issue a licence to Defence Housing Australia in the name 'Defence Housing Australia'. (2) A licence issued to Defence Housing Australia authorises an officer or employee of the authority to perform any activity authorised by the authority that the authority may perform under the licence. (3) To remove any doubt, it is declared that an officer or employee performing an activity authorised by the authority is not required to be licensed or registered under this Act to perform the activity. 54 Licence—conditions (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 a licensee 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 making the decision. Division 11 Restrictions on performing activities under licences 55 Restriction—corporations (1) A corporation that holds a licence may perform an activity under its licence only if the activity may be performed by— (a) a licensed person who is in charge of the corporation's business; or (b) a person permitted under section 84(2)(b)(ii)(B) to be in charge of a particular place, if the activity is performed at that place; or (c) a liquidator or controller appointed under the Corporations Act of property of the corporation; or (d) an administrator of the corporation appointed under the Corporations Act; or (e) an administrator of a deed of company arrangement for the corporation appointed under the Corporations Act; or (f) a receiver appointed under the Administration Act for property of the corporation. (2) However, subsection (1) does not prevent a corporation that holds a real estate agent licence selling or attempting to sell, or offering for sale or resale, any property by way of auction if the auction is conducted by an auctioneer who is an employed licensee of the corporation. (3) A corporation that is a former licensee may perform an activity authorised under the former licence if the activity is performed by a person mentioned in subsection (1)(b), (c), (d), (e) or (f). (4) If a corporation that holds a licence or is a former licensee performs an activity it is not authorised to perform, it is taken to be a person who acts as a licensee without a licence for the performance of the activity. (5) In this section— former licensee means— (a) a licensee under a licence that was previously in force; or (b) a licensee under an existing licence. 56 Restriction—individuals (1) An individual who is an employed licensee may perform an activity authorised under the individual's licence only if the activity may also be performed by the individual's employer under the employer's licence. Example— E is a licensed employee of P, a property agent. E's licence is not subject to a condition. However, P's licence is subject to a condition that P deal only in business letting. Because of the condition, E is only authorised to deal in business letting under E's licence during E's employment with P and while P is subject to the condition. (2) However, subsection (1) does not prevent an individual who holds an auctioneer licence selling or attempting to sell, or offering for sale or resale, any property by way of auction for the individual's licensed employer. (3) If the employed licensee performs an activity the employed licensee is not authorised to perform because of subsection (1), the employed licensee is taken to be a person who acts as a licensee without a licence for the performance of the activity. 57 Restriction—conditions (1) This section applies to a licensee who performs an activity under the licensee's licence that the licensee is not authorised to perform because of a condition on the licensee's licence. (2) The licensee is taken to be a person who acts as a licensee without a licence for the performance of the activity. Note— For the consequences of a licensee performing an activity that the licensee is not authorised to perform because of a condition on the licensee's licence, see sections 97 and 100. Division 12 Renewal and restoration of licences Subdivision 1 Renewal 58 Application for renewal (1) A licensee may only apply for renewal of the licensee's licence 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 licensee'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 licensee is required as a condition of the licensee'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 licensee—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 licensee during the relevant audit period; or (b) a statutory declaration by the licensee that the licensee did not operate a trust account during the relevant audit period. (4) In this section— relevant audit period, for a licensee's licence, means the audit period ending immediately before the licence's expiry date. 59 Chief executive may renew or refuse to renew licence (1) The chief executive must consider the renewal application 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 licensee is a suitable person to hold a licence and— (i) if the licensee carries on business in partnership or in conjunction with others—each member of the partnership or each person with whom the licensee carries on business in conjunction is a suitable person to hold a licence; and (ii) if the licensee is a corporation—each executive officer of the corporation is a suitable person to hold a licence; and (b) the application is made under section 58; and (c) the licensee meets the eligibility requirements, other than eligibility requirements of an educational nature, for the licence. (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 making the decision. 60 Licence taken to be in force while application for renewal is considered If an application is made under section 58, the licensee's licence is taken to continue in force from the day that it would, apart from this section, have expired until the licensee's application for renewal is— (a) decided under section 59; or (b) withdrawn by the licensee; or (c) taken to have been withdrawn under section 33(3) or 42(5). Subdivision 2 Restoration 61 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 to the chief executive in the approved form; and (b) be made within 3 months after the expiry; 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 expired 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 maintained by the person during the relevant audit period; or (b) a statutory declaration by the person that the person did not operate a trust account during the relevant audit period. (4) In this section— relevant audit period, for a person's expired licence, means the audit period ending immediately before the licence expired. 62 Licence taken to be in force while application for restoration is considered If an application is made under section 61, the person's licence is taken to have continued in force from the day that it would, apart from this section, have expired until the person's application for restoration is— (a) decided under section 63; or (b) withdrawn by the person; or (c) taken to have been withdrawn under section 33(3) or 42(5). 63 Chief executive may restore or refuse to restore licence (1) The chief executive must consider the restoration application and may decide to restore or refuse to restore the licence. (2) The chief executive may decide to restore the licence only if the chief executive is satisfied— (a) the person is a suitable person to hold a licence and— (i) if the person carries on, or intends to carry on, business in partnership or in conjunction with others—each member of the partnership or each person with whom the person carries on business in conjunction is a suitable person to hold a licence; and (ii) if the person is a corporation—each executive officer of the corporation is a suitable person to hold a licence; and (b) the application is made under section 61; and (c) the person meets the eligibility requirements, other than eligibility requirements of an educational nature, for the licence. (3) If the chief executive decides to refuse to restore the licence, the chief executive must give the person an information notice about the decision within 14 days after making the decision. (4) If the chief executive decides to restore the licence— (a) the licence is taken to have been renewed on the day it would, apart from section 62, 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 decision is made 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 13 Dealings with licences Subdivision 1 Licence not to be transferred, lent or borrowed 64 Transfer of licence prohibited A licence may not be transferred. 65 Offence to sell, lend or borrow licence (1) A licensee must not— (a) sell, lend or hire out the licensee's licence to someone else; or (b) notify or advertise that the licensee's licence is available for sale, loan or hire to someone else, whether licensed or not; or (c) allow someone else to hold out the person is the holder of the licensee's licence. Maximum penalty—200 penalty units or 2 years imprisonment. (2) A person must not buy, borrow or hire a licensee's licence. Maximum penalty—200 penalty units or 2 years imprisonment. (3) If a person who is not the holder of an appropriate licence or the licensee's substitute licensee has the effective or apparent management or control of a licensee's business, the licensee is taken to have lent, and the person is taken to have borrowed, the licensee's licence. Subdivision 2 Substitute persons 66 Appointment of substitute licensee—principal licensee—individual (1) A principal licensee may appoint an adult as the licensee's substitute licensee for a period of not more than 30 days only if— (a) the licensee will be absent from the licensee's registered office for the period; and (b) the adult consents to the appointment; and (c) if the licensee is required as a condition of the licensee's licence to hold insurance—the adult is covered by the insurance or holds insurance that complies with the requirements of the condition. (2) The principal licensee must ensure— (a) an appointment under subsection (1) and the substitute licensee'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 licensee is required to have are— (i) kept at the licensee's registered office; and (ii) made available for immediate inspection by an inspector who asks to see them. Maximum penalty—100 penalty units. (3) A principal licensee who will be absent from the licensee's registered office for a period of more than 30 days 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 licensee's substitute licensee. Maximum penalty—200 penalty units. (4) If the principal licensee is a person for whom an administrator has been appointed under the Guardianship and Administration Act 2000 or is deceased, the licensee's representative may make the application under subsection (3). (5) 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) is sufficiently qualified to perform the licensee's activities during the period; and (iii) if the licensee is required as a condition of the licensee'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 principal licensee—the amount of the costs required to be paid. (6) In this section— principal licensee means a principal licensee who is an individual. representative, of a principal licensee, means— (a) for a licensee for whom an administrator has been appointed under the Guardianship and Administration Act 2000—the licensee's administrator; or (b) for a deceased licensee—the licensee's personal representative. 67 Appointment of substitute licensee—employed licensee or real estate salesperson in charge of a principal licensee's business at a place (1) This section applies if an employed licensee or real estate salesperson in charge of a principal licensee's business at a place (the relevant person) will be absent from the place for any reason, other than the relevant person's resignation or termination of employment. (2) If the relevant person will be absent from the place for a period of not more than 30 days, the principal licensee may appoint an adult as— (a) the employed licensee's substitute licensee for the period if the adult consents to the appointment; or (b) the real estate salesperson's substitute real estate salesperson for the period if the adult consents to the appointment. (3) The principal licensee must ensure an appointment under subsection (2) and the person's consent to the appointment are— (a) in writing and state the period of appointment; and (b) kept at the principal licensee's registered office; and (c) made available for immediate inspection by an inspector who asks to see them. Maximum penalty—100 penalty units. (4) If the relevant person will be absent from the place for a period of more than 30 days, the principal licensee who employs the relevant person 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— (a) the employed licensee's substitute licensee; or (b) the real estate salesperson's substitute real estate salesperson. Maximum penalty—200 penalty units. (5) 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) eith