Part 9 Complaints and disciplinary action
132 Grounds for disciplinary action
(1) Disciplinary action under this Part can be taken against a person who is or was the holder of a licence on any one or more of the following grounds:(a) the person has contravened a provision of this Act or any other Act administered by the Minister, or the regulations under any such Act, whether or not the person has been prosecuted or convicted of an offence in respect of the contravention,(b) the person has failed to observe any rules of conduct prescribed by the regulations under section 22,(c) the person has contravened a condition of the licence,(d) the person is a disqualified person or is otherwise not eligible under section 8 to hold a licence,(e) the person is not a fit and proper person to be involved in the direction, management or conduct of the business of a licensee,(f) without limiting paragraphs (d) and (e), the person is (because of physical or mental illness or infirmity) unfit to carry out conveyancing work and it is in the public interest that disciplinary action be taken,(g) the person has failed to pay any part of a contribution or levy that is due and payable under section 12,(h) the person has breached an undertaking given by the person to the Director-General under this Act or the Fair Trading Act 1987, in respect of the person’s conduct of business or exercise of functions under the licence,(i) the person has failed to comply with a direction given to the person by the Director-General pursuant to the taking of disciplinary action under this Part,(j) the person has failed to pay a monetary penalty imposed on the person by the Director-General pursuant to the taking of disciplinary action under this Part,(k) the issue of the person’s licence was obtained by fraud or mistake,(l) any other ground specified in the regulations as a ground for the taking of disciplinary action against a person under this Act.(2) For the purposes of subsection (1) (f), a person is unfit to carry out conveyancing work only if the person, because of his or her physical or mental illness or infirmity, is unable to carry out the inherent requirements of conveyancing work.(3) The following are to be taken into account in determining whether a person is unable to carry out the inherent requirements of conveyancing work:(a) the person’s past training, qualifications and experience relevant to such work,(b) if the person is already carrying out such work—the person’s performance in carrying out such work,(c) all other factors that it is reasonable to take into account.
(1) Each of the following actions is disciplinary action that the Director-General can take against a person under this Act:(a) caution or reprimand the person,(b) give a direction to the person requiring the person to give a specified undertaking to the Director-General as to the manner in which the person will conduct the conveyancing business or exercise functions under the person’s licence,(c) give a direction to the person requiring the person to take specified action within a specified time in connection with the conduct of the conveyancing business or the exercise of functions under a licence,(d) impose a monetary penalty on the person of an amount not exceeding 200 penalty units in the case of a corporation or 100 penalty units in any other case,(e) impose a condition on the person’s licence,(f) suspend the person’s licence for a period that does not exceed the unexpired term of the licence,(g) cancel the person’s licence,(h) declare the person to be a disqualified person for the purposes of this Act, either permanently or for a specified period,(i) disqualify the person from being involved in the direction, management or conduct of the conveyancing business.(2) A power conferred by this Act to take disciplinary action against a person is a power to take any one or more of the actions that constitute disciplinary action.(3) When a licence is suspended, it is taken not to be in force except for such provisions of this Act or the regulations as the regulations may prescribe as provisions that remain applicable to a suspended licence.
134 Decision to take no further action
The Director-General may at any stage of a matter that is the subject of consideration by the Director-General under this Part determine to take no further action in respect of the matter, whether or not the matter is the subject of a complaint or a show cause notice and whether or not the Director-General determines that there are grounds for taking disciplinary action in connection with the matter.
(1) Any person may make a complaint to the Director-General setting out matters that are alleged to constitute grounds for taking disciplinary action against a person under this Act.(2) Action can be taken under this Part whether or not a complaint has been made.
(1) The Director-General may serve a show cause notice on a person if the Director-General is of the opinion that there is reasonable cause to believe that there are grounds for taking disciplinary action against the person.(2) A show cause notice is a notice requiring a person to show cause why disciplinary action should not be taken against the person under this Act on the grounds specified in the notice.(3) A show cause notice is to be in writing and is to specify a period of not less than 14 days after service of the notice as the period that the person to whom the notice is directed has to show cause as required by the notice.(4) The person on whom a show cause notice is served may within the period allowed by the notice make oral or written submissions to the Director-General in respect of the matters to which the notice relates. In the case of a corporation, submissions may be made by a director or officer of the corporation.
137 Power to suspend licence when show cause notice served
(1) When a show cause notice is served on a person, the Director-General may by notice in writing to the person suspend the person’s licence pending a determination by the Director-General of whether to take disciplinary action under this Act against the person.(2) The Director-General may only suspend a licence under this section if satisfied that the grounds for disciplinary action specified in the show cause notice would, if established, justify the suspension or cancellation of the licence.(3) Such a suspension may not be imposed for a period of more than 60 days after the show cause notice is served.(4) The Director-General is not required to afford a person an opportunity to be heard before taking action against the person under this section.(5) The Director-General can revoke a suspension under this section at any time by notice in writing to the suspended person.(6) This section does not limit or otherwise affect any power to suspend a licence under section 64A of the Fair Trading Act 1987.
138 Inquiries and investigation
(1) The Director-General may conduct inquiries and make investigations in relation to the matters to which a show cause notice relates and the submissions, if any, made by or on behalf of the person to whom the show cause notice relates in relation to those matters, as the Director-General thinks fit.(2) Without limiting subsection (1), the Director-General may, if a show cause notice relates to a matter referred to in section 132 (1) (f), require the person concerned to be examined by a medical practitioner nominated by the Director-General.
139 Taking of disciplinary action
(1) If the Director-General is satisfied that there are grounds for taking disciplinary action under this Act against a person on whom a show cause notice has been served, the Director-General may by order in writing served on the person take such disciplinary action against the person as the Director-General thinks is warranted.(2) The order must include a statement of the reasons for the Director-General’s decision on the matter.
140 Recovery of monetary penalty
A monetary penalty imposed on a person by disciplinary action under this Part may be recovered by the Director-General in a court of competent jurisdiction as a debt due to the Crown.
141 Review of disciplinary action by ADT
A person against whom disciplinary action is taken by the Director-General may apply to the Administrative Decisions Tribunal under the Administrative Decisions Tribunal Act 1997 for a review of the Director-General’s decision on the disciplinary action or on a review of the disciplinary action.
(1) The Director-General may authorise publication of a notice warning persons of particular risks involved in dealing with a specified licensee, or a person who does not hold a licence, in connection with the activities of licensees.(2) For example, a warning may relate to the risks involved in dealing with a person who has a recent history of unconscionable conduct in the person’s dealings with consumers.(3) The Director-General may authorise publication of such a notice in any one or more of the following ways:(a) to any person making inquiries to the Director-General about the licensee concerned,(b) by advertisement by the use of any medium,(c) to any media representatives.(4) Publication of such a notice may not be authorised unless an investigation has been conducted by the Director-General, whether or not a complaint has been made.(5) Before authorising publication of such a notice, the Director-General must give the person concerned an opportunity for a period of not less than 48 hours to make representations to the Director-General about publication of such a notice, unless:(a) the Director-General is not able, after making reasonable efforts to do so, to contact the person promptly and advise the person of that opportunity, or(b) the person refuses to make any representations.(6) No opportunity to make representations is required to be given if, in the opinion of the Director-General, there is an immediate risk to the public.(7) No liability is incurred by a person for publishing in good faith:(a) a notice under this section, or(b) a fair report or summary of such a notice.
143 Failure to comply with disqualification from involvement in business
A person who is disqualified under this Part from being involved in the direction, management or conduct of the business of a licensee must not act contrary to the disqualification.Maximum penalty:
(a) 200 penalty units in the case of a corporation, or(b) 100 penalty units in any other case.
144 Return of suspended or cancelled licence
A person who has possession of a licence that has been suspended or cancelled under this Part must give the licence to an officer of the Department at any office of the Department within 7 days after the suspension or cancellation takes effect.Maximum penalty:
(a) 40 penalty units in the case of a corporation, or(b) 20 penalty units in any other case.