REAA CPPREP4003 - Student Learner Guide 1.5

CPPREP4003 - Access and interpret legislation in real estate (Release 1)
Student Learner Guide
Table of Contents
What is Law? ........................................................................................................................................... 4
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The Legislative Framework (Three Sources of Law) ........................................................................... 5

Common Law .................................................................................................................................. 5
Contract Law ................................................................................................................................... 7
Equity Law ....................................................................................................................................... 7
Statute Law ..................................................................................................................................... 8
The Australian Legal System ........................................................................................................... 9
History of Law in Australia ............................................................................................................ 11
Federation and the Australian Constitution ................................................................................. 12
Federal (Commonwealth) Legislative Powers............................................................................... 12
State / Territory Legislative Powers .............................................................................................. 13
Legislation - Statutes - Acts of Parliament (Components of Legislation) ...................................... 14
Delegated / Subordinate Legislation............................................................................................. 15
Delegated Authorities (Regulators) .............................................................................................. 16
By-Laws ......................................................................................................................................... 16
Acts and Subordinate Legislation in the Real Estate Industry ...................................................... 17
How Statute Legislation is Created ............................................................................................... 17
Policy Development ...................................................................................................................... 18
Draft Bill stage ............................................................................................................................... 18
Parliamentary Processes ............................................................................................................... 18
Royal Assent .................................................................................................................................. 19
Commencement............................................................................................................................ 19
Access to Legislation ..................................................................................................................... 20
Interpreting Legislation ................................................................................................................. 21
Interpretation Acts ........................................................................................................................ 22
Structure of Legislation ................................................................................................................. 23
Interrelationship between pieces of legislation ........................................................................... 24
Key principles for reading and interpreting legislation................................................................. 25
Internal/Intrinsic Aids ................................................................................................................... 25
External/Extrinsic Aids .................................................................................................................. 25
Language conventions and expressions........................................................................................ 26
Reading Rules ................................................................................................................................ 26
Relevant Legislation for the Real Estate Industry ......................................................................... 27
Commonwealth Legislation .......................................................................................................... 27
State Legislation ............................................................................................................................ 27
Personal Responsibility ................................................................................................................. 28
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Discrepancies in application of legislation .................................................................................... 28

Other Relevant Legislation ............................................................................................................ 28
Commonwealth............................................................................................................................. 28
New South Wales .......................................................................................................................... 30
Queensland ................................................................................................................................... 31
Victoria .......................................................................................................................................... 33
Real Estate Codes of Conduct ........................................................................................................... 34
Fines and Penalties ........................................................................................................................... 35
Conclusion ......................................................................................................................................... 35
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What is Law?
Law is a system of rules a society sets to maintain order and protect harm to persons
and property. Law is ancient, with some scholars suggesting that formal law dates
back to the Code of Hammurabi, written by an ancient Babylonian king around 1760
BC.
It is highly probable that the Code of Hammurabi influenced other legal codes in the
middle eastern region. Many of these codes spread into neighbouring regions as trade
routes and physical communications expanded. Gradually, the codes developed into
legal systems which influenced European law, so the widely used common law system
owes some credit to the Code of Hammurabi.
Today, most countries have tens or hundreds of thousands of pages of law, including
law of contract, law of property, law of trusts, law of tort, criminal law, constitutional
law, administrative law, and international law.
Each of these sets the rules for a distinct area of human activity. Without laws, there
is lawlessness, which historically has led to a general breakdown in society,
sometimes to the point of a near-standstill in the economy.
Today, we live in a highly developed and civilised society. Consequently, the range of
activities, and the complexity of life is such that the conduct of individuals and
corporations requires regulation to create and maintain order.
The motivation to regulate behaviour comes from political, economic, social, moral and
religious sources.
The laws and regulations that provide the system that regulate people’s conduct in
today’s society have developed over time and have been based upon historical norms
(Common Law) combined with developed legislation (Statute Law).
Click below to watch the video on this topic. Note: This is supplementary to this
learner guide and should not be watched to replace reading the learner guide as it
does not cover information as extensively as the learner guide.
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Figure 1: Beginners Guide to Legislation (Video Tutorial)
The Legislative Framework (Three Sources of Law)
Common Law
Common law forms the basis of the legal system in England and other English-
speaking countries, especially those that were former British colonies. It is that which
has evolved over the years as a result of judgements made in the various Common
Law Courts of England over the years and for this reason it is also known as “Case
Law”
In primitive societies, traditional customs tend to govern tribal behaviour, and set the
standards for the behavioural norms of that particular group of people, tribe or area,
which effectively becomes the ‘common law’ for those people.
Over time, as society has developed, the tribal customs have formulated, developed
and evolved and been administrated by judges in determining the outcome of legal
disputes.
Therefore, Common Law was originally based on unwritten common or tribal customs
- it was really the common sense of the community, formulated by our forefathers.
The basis of Common law, as we now know it, was established in England by King
Henry II in the 12th Century. He centralised administration of justice in England by
sending judges on circuits throughout the country (circuit judges), which resulted in
the gradual development of a common set of principles, applicable nationwide, and
administered by the King’s Court.
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Gradually, 3 main court systems were established:

• The Court of the Kings Bench, which heard matters in which the Crown was a party,
including criminal prosecutions
• The Court of Exchequer, which originally dealt with disputes involving the revenue
and exchequer
• The Court of Common Pleas, which dealt with litigation between individuals.
These different courts established a system of law that could supersede or over-ride
the judgments of local courts. Also, in civil matters between individuals, common law
was used to compensate those people who had had wrongful acts, known as torts,
committed against them.
Common law is law created and refined by judges, who have the authority and duty to
make law by creating precedent. Judges will analyse, make decisions and
recommendations about the cases currently before them by referring back to decisions
made in previous cases that may have been heard recently, or sometimes decades
previously. They will also take into account decisions made in other “Common Law”
countries.
Judges also compare the circumstances of their current case and relate it to previous
cases when writing their opinions and decisions or giving direction to juries (in civil
matters). Their decisions then become the basis or ‘precedent’ for future cases to be
heard by other judges in the future. In future cases, when parties disagree on what the
law is, an idealised common law court looks to past precedents and decisions made
by relevant courts in other jurisdictions.
If a similar case has been resolved in the past, the court is bound to follow the
reasoning used in the prior decision. The strength of the similarity among the cases
strengthens the reasoning based on them.
If the court finds that the current case is fundamentally distinct from all previous cases,
it will decide as a "matter of first impression". The new decision becomes the precedent
and will bind future court rulings.
Decisions made in one court are binding on lower courts, but decisions made in lower
courts may be overturned by higher courts (under the appeals system).
The development of Commercial Law emerged in the 15th and 16th Centuries,
followed by the principles of Tort and Contract Law.
Until the 19th Century, Common Law, or Case law were the main source of law. Since
then, Statute Law has become the dominant source of law as in a modern society
there is a greater need for government intervention in the lives of individuals, and to
regulate the conduct of society in general.
Common law, because it is based upon historic court judgements, is slow to change,
and has proven to be too slow to meet the needs of today’s society. Additionally, as it
is judge made law, and based on previous historical events, situations or disputes,
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and is difficult to translate to other or more general circumstances of modern life and
commercial transactions.
Statute Law is generally aimed at the future, for active intervention in our lives. Statute
law can amend or repeal the common law.
Where there is conflict between common law and statute law, the common law is
generally inferior, and statute law will prevail. Often statute law is open to
interpretation in different ways, and in such situations, common law principles are
applied, and new common law develops as courts interpret and apply statutes.
Contract Law
Contract law encompasses any laws or regulations directed toward enforcing certain
promises.
We all make contracts almost every day. Whenever we buy a coffee, do the grocery
shopping, fill the car up with petrol or purchase a ticket for public transport we are
entering into a contract. We are often unaware we are contracting (or at least don't
turn our minds to that fact) and in most cases it is unnecessary to do so; most contracts
are made and performed instantly (or almost instantly) without any problems arising.
However, should something go wrong (e.g., one party fails to perform (e.g., deliver
goods) or goods delivered, or services performed are defective in some way), it may
become important to assess when and whether a valid contract was entered into, the
nature of its terms and obligations and what, if any, remedies may be available in the
event of a breach. This is how we buy and sell houses on a legally binding written
contract.
In Australia contract law is primarily governed by the 'common law', but increasingly
statutes are supplementing the common law of contract - most notably, but certainly
not exclusively, in the area of consumer protection.
Equity Law
Equity is primarily concerned with “fairness” or natural justice.
To some extent, it evolved out of church law and therefore has taken the high moral
ground. It is founded on distinct principles but claiming superiority to the common law
because of its superior sanctity inherent in those principles.
Originally administered by the Court of Chancery it balanced administration of justice
through the established courts.
Equity looks at aspects such as ‘good faith’ and ‘conscience’ and has therefore been
the key source of law in determining cases based on the rights of individuals, wills
and trusts, and other fields.
Equity and Common Law are similar in being both judge-made law.
An example of how Equity and Common Law might differ is this:
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Example: Bob goes onto John’s land and chops down a tree which overhangs
his fence. John takes Bob to court and the case is dealt with under common law.
However, if John had heard that Bob was planning to chop down his tree, he
could apply to the court to prevent Bob from chopping down the tree. That case
would be heard under the principles of equity.
Statute Law
Statutes are laws that have been enacted by a legislative body with the powers to
create law, and are generally aimed at the future, for active intervention in our lives.
Often also known as statutory law, statute law is written law set down by a legislature.
Statutes are enacted in response to a perceived need to clarify the functioning of
government, improve civil order, to formalise existing law, or to ensure that a group of
people act and behave in a certain way (as in the case of real state legislation).
It may also be used to permit or restrict a company (or other groups of people) from
doing something, or to obtain special treatment.
Statutes may be enacted by the national and state legislatures or by local or statutory
authorities. Typically, the statutes of lower jurisdictions are subordinate to the law of
higher, and the higher legislative body’s statute takes precedence.
Statute Law includes both direct legislations passed by Parliament (Acts) and
delegated legislation such as by-laws and regulations, rules and guidelines.
If there is a conflict between the three forms of Law, statute law is usually the superior
over common law and equity.
When legislation is enacted and brought into effect, it is considered ‘untested’. This is,
no action will have been brought to court under that law, and therefore it may be
subject to different interpretations depending upon one’s viewpoint.
When this happens, the judge will then look at the reasoning behind the particular law,
and also apply the principles of common law when coming to a decision.
Considerations to be taken into account will include:

• Has a situation like this occurred before?
• What happened then?
• How does it apply now?
• What is this law trying to achieve?
Over a period of time, the legislation is interpreted in court cases (tested) and when
the legal system is reasonably assured of what the legislation means, as a result of
the determination of cases, then the law is “certain” or “settled”.
Example: The statutory definition of site value for property tax purposes rating
values is certain or settled law because its meaning has been explored and
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determined by a long line of cases. Case law on interpretation of one section of an

Act may convert a couple of lines (or even words) into a detailed explanation. For
example, the willing buyer / willing seller theory of market value (Spencer’s case).
The property market is a complex market that is affected by many issues, but
principally supply and demand, which create the conditions under which the
property will achieve market value when sold, as long as normal business
considerations are made. Most people have some concept of what market value
means. Expressions such as "the going price" or "market price" are common terms.
The laws of property, however, require a much more concise definition especially
when property is compulsorily acquired, and fair compensation must be paid.
The legal case, Spencer vs. the Commonwealth, set the precedent for the definition
of market value in Australia.
Spencer owned about 6 acres of land in Fremantle, WA. The Commonwealth Govt.
acquired the land to build a fort in 1905. Spencer sought justice from the High Court
of Australia for "fair compensation". To determine the market value of the land, the
Court had to examine the concept of a willing buyer and a willing seller on a specific
date. Part of the High Court judgement, which explains this concept, was:
“…. we can conclude that market value is determined by a willing buyer and a
willing seller, who are not so anxious to either buy or sell property that they overlook
any normal business considerations and are aware of the land and all its
circumstances which might affect its value, either [way], including its situation,
character, quality, proximity to conveniences or inconveniences, its surrounding
features, the … demand for land and the likelihood … of a rise or fall for what
reason so ever in the amount which one would otherwise be willing to fix as the
value of the property".
Market value once stated only refers to the specific point in time when a transaction
takes place. In keeping with the forces of supply and demand, fluctuations in the
market will occur and depending on the circumstances at the time, a sale price may
be more or less than the notional market price.
Well promoted properties will produce more buyers and for that reason can achieve
above market price.
The Australian Legal System

The basis for the Australian legal system lies in the English legal system. The UK
Parliament had the power to legislate in its colonies and establish governments in
colonies. As a result, Australian law reflects its English origins.
However, the British regarded the Aboriginal peoples as being too primitive to have
lawful possession of the Australian continent and chose to treat “New Holland” as terra
nullius, an uninhabited land open for settlement.
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Since the Privy Council had held that uninhabited lands settled by English subjects
would be governed by the laws of England, there was no place for Aboriginal native
title to land, or for recognition of Aboriginal custom or law.
English law was clarified by the Australian Courts Act 1828, which provided that all
laws and statutes in force in England at the date of enactment should be applied in
the courts of New South Wales and Van Diemen's Land (Tasmania) so far as they
were applicable. Since Queensland and Victoria were originally part of New South
Wales, the same date applies in those States for the reception of English law. South
Australia and Western Australia adopted a different date.
The earliest civil and criminal courts established in New South Wales were basic and
military in character, although adaptive to the different situation in the new colony.
Although legality was not always observed, the courts limited the powers of the
Governor, and the law of the colony was at times more egalitarian than in Britain.
By 1824, a court system based on the English model had been established through
Acts of the British Parliament. The New South Wales Act 1823 provided for the
establishment of a Supreme Court with the power to deal with all criminal and civil
matters "as fully and amply as Her Majesty's Court of King's Bench, Common Pleas
and Exchequer at Westminster".
Inferior courts were also established, including courts of General or Quarter Sessions,
and Courts of Requests.
Representative government emerged in the 1840s and 1850s, and a considerable

measure of autonomy was given to local legislatures in the second half of the
nineteenth century.
Colonial Parliaments introduced certain reforms such as secret ballots and female
suffrage, which were not to occur in Britain until many years later.
Nevertheless, Acts of the United Kingdom Parliament extending to the colonies could
override contrary colonial legislation and new doctrines of English common law
continued to be treated as representing the common law of Australia.
Under the Australian legal system all constitutional power is derived from the UK
Parliament and Australian institutions of government are modelled on those of Britain.
One major difference is that Britain has a unitary form of government; Australia has a
federal system of government with Commonwealth, State and Territory governments.
The major similarity is that Australian law, like British law, consists of statutes,
delegated legislation and common law.
However, as a result of the Constitution of Australia, Australian statute law includes

federal (Commonwealth) laws enacted by the Parliament of Australia, and laws
enacted by the Parliaments of the Australian states and territories.
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The most important law of Australia is the Constitution of Australia, which describes
Australia's system of constitutional monarchy, and forms the basis for the government
of Australia.
All of the States and territories of Australia that are self-governing are separate
jurisdictions and have their own system of courts and parliaments. The systems of
laws in each State are influential on each other, but not binding. Laws passed by the
Parliament of Australia apply to the whole of Australia.
The High Court of Australia has general jurisdiction over the State Supreme Courts.
This ensures there is a single uniform Australian common law.
In Australia, only a Parliament may make legislation or authorise the making of

legislation. However, because judges have the role of applying the laws of
interpretation, if there is a dispute about the meaning of legislation, the judges decide
the dispute.
There has been little borrowing of other overseas statute law, despite the fact that
some sections in the Australian Constitution are modelled on the Constitution of the
USA.
History of Law in Australia

Until the 13th Century in England, Laws were made by the King and his advisers. In
1215, King John put his seal to the Magna Carta (Great Charter) and this document
has formed the basis for the establishment of many legal systems around the world.
Subsequent issues and drafts of the Magna Carta were produced over the following
centuries, but it did lead to the establishment of a parliament, and later the formation
of two assemblies:
• The Upper House (House of Lords) comprising the aristocracy and church
dignitaries.
• The Lower House (House of Commons) being the assembly of commoners and
citizens.
In Australia today, we have the same format of government – the Senate and the
House of Representatives.
By 1708 it had been established that the Parliament, and not the King, had the
supreme legislative power, and that that power extended to both Britain and its
Colonies.
Therefore, following colonisation in 1788 the principles of English Common Law and
Equity applied in NSW. However, they were not always suitable to the conditions and
governance of a penal settlement.
The Australian Courts Act 1828 (UK) declared that: “...all laws, and statutes in force
within the realm of England… shall be applied in the administration of justice in the
courts of NSW… so far as the same can be applied”
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In 1855, the New South Wales Constitution Act 1855 (UK) allowed the NSW
Parliament the power to legislate for the “…peace, order and good government of the
colony”, but not to override any UK Statutes or Common Law.
This was again confirmed in the Colonial Laws Validity Act 1865 (UK). Even the New
South Wales Act, The Constitution Act 1902 (NSW) (and similar statutes in other
states) did not seek to over-ride any UK Statutes or Common Law in place in NSW at
that time.
It was not until the Imperial Acts Application Act 1969 (NSW) that the NSW state
parliament started to repeal ancient UK statutes and allow themselves the opportunity
to modernise many English Statutes. Other states have enacted similar legislation
which allows them to repeal or modernise old English laws.
Federation and the Australian Constitution

The Commonwealth of Australia came into existence in 1901 as a result of the
Commonwealth of Australia Constitution Act 1900 (UK). The six self-governing
colonies became States within the Australian Federation.
The Commonwealth can only make laws under the powers listed in the Constitution.
Section 51 of the Constitution deals with most (though not all) of the legislative powers
of the Commonwealth parliament.
There are 39 categories of legislation that may be enacted under s51 of the
Constitution, which effectively limit the powers of the commonwealth to legislate for
the:
“…peace, order and good government of the Commonwealth… in respect to trade,

taxation, defence, banking, immigration, and external affairs…”
The Constitution is Australia’s fundamental law for the Commonwealth, but the States
also have their own Constitutions and legislative powers.
Whilst State Constitutions can be amended by state parliament, the Commonwealth’s

Constitution can only be amended by way of a referendum as laid down in the
Constitution.
It has proved very difficult to amend the Constitution as it requires consistent

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

Section 51 of the Australian Constitution grants legislative powers to the Australian
(Commonwealth) Parliament. When the six Australian colonies joined together in
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Federation in 1901, they became the original States and ceded some of their powers
to the new Commonwealth Parliament.
Federation was intended to address problems caused by having separate colonies on

the one island continent. Section 51 therefore encompasses a group of ‘nationhood’
powers. The Commonwealth Parliament only has the powers outlined in Section 51 of
the Federal Constitution and cannot make any other laws.
There are 39 subsections to section 51, each of which describes a head of power
about which the Parliament has the power to make laws. The most important heads
of power in Commonwealth legislation are:
• Trade and commerce with other countries, and among the States
• Foreign corporations, and trading or financial corporations formed within the
limits of the commonwealth
• External Affairs
• Taxation
• Military defence
• Quarantine
• Census and Statistics
• Currency
Powers not included in Section 51 are considered the responsibility of the States,
unless there is another grant of constitutional power (Section 52 and Section 90 of the
Constitution prescribe some additional powers).
Matters covered in Section 51 may be legislated on by the states, but the legislation
will be ineffective if inconsistent with or in a field 'covered by' Commonwealth
legislation
The High Court of Australia has the jurisdiction to interpret the constitution. Many of
the court's interpretations have focused on section 51, cases arising out of disputes
between the states and the Commonwealth Parliament. The High Court of Australia
can declare any Federal statute or law void if it does not comply with Section 51.
Example: In 1955, Prime Minister Menzies passed the Communist Party

Dissolution Act. That Act would have enabled the government to declare any
opponent a communist. That would have disqualified that person from holding any
official or government position and liable to imprisonment. The High Court held that
this was not a valid exercise of Commonwealth defence power and therefore void.
State / Territory Legislative Powers

State and Territory statutes are made by the State and Territory Parliaments under
their Constitution.
For example, the New South Wales Constitution says: "The Legislature shall, subject
to the provisions of the Commonwealth of Australia Constitution Act, have power to
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make laws for the peace, welfare, and good government of New South Wales in all
cases whatsoever."
Their powers are protected by the Australian Constitution, and Commonwealth

legislation only applies to the states were permitted by the Constitution. All territories,
on the other hand, are directly subject to the Commonwealth government.
However, the Australian Capital Territory and the Northern Territory have been
granted the delegated authority by the Commonwealth to be self-governing. Australia’s
external territories are governed directly by the Commonwealth.
As Australia has a federal system, disputes arise from time to time about whether or
not particular Acts are actually within the legal jurisdiction of the Parliament which
enacted them. Such disputes between States and the Commonwealth are, resolved
by the High Court of Australia in a process called ‘judicial review’. A Commonwealth
Act overrides any State Act that is inconsistent with it.
Legislation - Statutes - Acts of Parliament (Components of Legislation)

“Legislation” refers to the Statutes or Acts of Parliament that have been made by the
parliament, whether State or Commonwealth under the powers that allows them to do
so.
Parliaments make legislation or authorise the making of legislation by enacting an Act.

This means the Legislative Assembly passes a Bill for the Act and the Bill is given
royal assent. On assent the Bill becomes an Act.
All persons are required to take note of and comply with an Act. An Act binds everyone
to whom a provision in the act applies to, including people who are not Australian
citizens
An Act is essentially a sequence of provisions containing statements and rules. What

is achieved by the Act depends on the interpretation of the Act's provisions.
Legislation may have its effect by:

• Directly deciding the matter or
• Authorising someone else, that is, delegating the power to someone else, to
make a law about the matter or decide the matter.
Legislation may incorporate another document by reference, whether or not the other
document is itself legislation.
Legislation may empower someone or some other body to create a subset of rules or
regulations that support the legislation, and that have the same effect as the law itself
and form part of the law itself.
This is known as delegated or subordinate legislation. When we talk about ‘Legislation’

that also includes all delegated or subordinate legislation.
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The delegated ‘instrument’ may be legislative in character or it may be administrative

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

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

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

instruments, but may be known by different names in different States and Territories:
The following are all forms of Delegated Legislation:

• Regulations
• Rules
• Notifiable Guidelines
• Notices
• Orders
• Amendments
• By-Laws
Parliaments tend to limit their own activities to that of determining broad matters of
policy, and not the specifics of how to comply with the act.
Therefore, they will ‘delegate’ the responsibility of creating and providing rules and
regulations to support the statutes to an authorised body with specialist knowledge to
be responsible for the implementation, administration and procedures to be followed
in order to comply with the Act.
Example: In the ACT, the Territory Government has created and passed the
Statute The Agents Act 2003 (ACT). The body responsible for the administration
and implementation of the Act is the Office of Regulatory Services, part of the ACT
Department of Commerce. The Office of Regulatory Services has been delegated
the authority to produce the Agents Regulation 2003, which determine how the Act
should be implemented and administered. The Act allows for the regulations to
prescribe ‘Rules of Conduct’, which form a part of the Agents Regulations.
This system of delegating legislation to the regulatory body has certain advantages:
• It allows detailed explanation of the requirements, which the Act may
not have.
• It may include implementation guidelines and regulation which the
legislation lacks.
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• It may clarify the legislation and show how it can be complied with.
• It may show the penalties applicable for non-compliance with provisions
in the act.
• It is easier to revise and enact than a new Act of Parliament.
• It is simpler to alter in response to market, consumer or economic
factors.
One of the problems with legislation is that it is written in a style which is unfamiliar to
most people and is unclear and ambiguous to them. It then leaves the legislation open
to interpretation by the average person, and that may be the wrong interpretation.
Subordinate legislation frequently attempts to overcome this problem.
One disadvantage of having the regulations prepared by regulatory bodies is that the
quantity of delegated legislation has increased exponentially over recent years, and,
as a result, there is a mass of legal rules such as regulations, by-laws, etc.
There is nothing to say that there is one act – one regulation, as the table below
illustrates.
The practical task of keeping up with new regulations is a difficult one for both lawyers
and citizens. In some cases, it is thought that too much law-making power has been
delegated to the regulatory authorities, and that parliament has abrogated its
responsibilities to the statutory authorities.
Delegated Authorities (Regulators)

These are the bodies that supervises a particular industry or business activity and who
prepare and authorise Real Estate Legislation.
• QLD: Office of Fair Trading (Department of Employment, Economic
Development and Innovation)
• NSW: Office of Fair Trading (Department of Commerce)
• ACT: Office of Regulatory Services (Department of Justice and Community
Safety)
• VIC: Consumer Affairs
By-Laws
By-laws are laws of local or limited application, passed under the authority of a higher
law specifying what things may be regulated by the by-law. By-laws can also refer to
the internal rules of a company or organisation, such as institutes, clubs and
membership groups.
Municipal by-laws are public regulatory laws which apply in a certain area. The main
difference between a by-law and a law passed by a federal or state body is that a by-
law is a made by a non-sovereign body, which derives its authority from another
governing body, and can only be made on a limited range of matters.
A local council (for example) gets its power to pass laws through a law of the state
government which specifies what things the town or city may regulate through by-laws.
It is therefore a form of delegated legislation. The local council can therefore pass
laws relating to areas of local planning (e.g., subdivisions), zoning etc.
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As long as a by-law is made correctly, within the jurisdiction of the authority, a

municipal by-law is no different than any other law of the land, and can be enforced
with penalties, challenged in court and must comply with other laws of the land, such
as the country's constitution.
Local by-laws are often enforceable through the public justice system, and offenders
can be charged with a criminal offence for breach of a by-law.
Common by-laws include vehicle parking and stopping regulations, animal control,
building and construction, licensing, noise, zoning and business regulation, and
management of public recreation areas. In Australia, by-laws are normally enforced
(in the first instance) by council Rangers.
Acts and Subordinate Legislation in the Real Estate Industry

Below are some examples of “Principal Acts” and “Delegated / Subordinate
Legislation” that governs the Real Estate industry in the different States and
Territories:
State/Territory Legislation – Principal Act Subordinate Legislation

NSW Property and Stock Agent Act Property and Stock Agent
2002 Regulation 2014
Property and Stock Agents
(Qualifications) Order 2019
Residential Tenancies Act 2010 Residential Tenancies
Regulation 2019
QLD Property Occupations Act 2014 Property Occupations
Regulation 2014
Agents Financial Administration Agents Financial
Act 2014 Administration Regulation
2014
Residential Tenancies and Residential Tenancies and
Rooming Accommodation Act Rooming Accommodation
2008 Regulation 2009
VIC Estate Agents Act 1980 Estate Agents (Professional
Conduct) Regulations 2018
Note: This is not an exhaustive list of the real estate / consumer protection legislation
applicable in the states and territories mentioned above.
How Statute Legislation is Created

In Australia, laws are made:
• By politicians in Parliament
• By judges making decisions about court cases.
Parliament-made law overrules judge-made law if both apply to a case.
Acts of Parliament Laws made by Parliament are called Acts, statutes or legislation.
To create new laws a Bill (a draft Act) is debated in Parliament. If it is passed by a
majority in both houses of Parliament, it becomes an Act.
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Some Acts may outline broad guidelines or principles but leave the administrative
detail to be defined in regulations, rules or local laws. This is known as 'delegated
legislation' and may be made by local councils, public authorities or authorised public
servants.
There are five key steps involved in making a law. These are:
Policy Development
This is the process by which ideals, ideas and practical needs are formalised and
expressed in party or Independent parliamentary members' policies.
Draft Bill stage

The Draft Bill is the conversion of proposed policies into a series of statements and
clauses that will eventually be placed before Parliament as a Bill. For the Government
this task is undertaken by Cabinet.
The technical detail of each clause is drafted by Parliamentary Counsel. The Public
Service can also recommend administrative changes to the relevant Minister. When
the draft Bill is expressed in a form acceptable to the Parliamentary party, it can be
introduced into the Parliament.
Parliamentary Processes
Generally, a Bill may be initiated in either House of Parliament although in practice
most Bills originate in the Lower House. (Note: QLD has no Upper House).
A distinction is made between a Government Bill, introduced by the appropriate

Minister, and a Private Member's Bill, brought on by an Opposition, Independent, or
Government backbench member.
Examination of the Bill is then conducted in three formal stages:
Stage 1
Permission to introduce a Bill into Parliament and to proceed with it is obtained in the
First Reading. No debate is allowed.
Stage 2
In the Second Reading, sometime after the First Reading, the principles but not the
details of the Bill are debated. If at this stage the House decides to examine the Bill's
clauses it has the option of proceeding to what is termed the Committee Stage of a
Bill in which all Members (a Committee of the Whole) scrutinise and, if they decide,
amend the Bill's clauses. That is, the Bill is committed.
Occasionally, Bills are instead referred to a Select Committee for examination. After
the committee phase the Chairman of Committees reports to the chamber on the
status of the Bill. Usually, the House has the option either of considering the Bill further
in Committee or passing on to the third and final stage.
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The committee stage is not compulsory. When Bills are considered uncontroversial or
are of a minor nature, the House may choose to avoid the committee stage and pass
directly to the third and final stage of parliamentary examination.
Stage 3
At the Third Reading, further debate may be permitted, but this is restricted and rarely
resorted to. The Bill is then passed.
When the Bill has passed the house of origin it is transmitted to the other Chamber
where an identical scrutiny procedure is followed.
Amendments may be made or suggested in which case messages pass between the
two houses until unanimity is achieved.
The Bill is now expressed in identical terms agreed upon and accepted by both
houses. When this occurs, the parliamentary process is concluded.
Royal Assent
The Queen, represented by the Governor, approves the Bill. It is now referred to as
an Act of Parliament.
Commencement
The time from which the law, as specified in the Act of Parliament, applies or in other
words is effective from. An Act or Regulation does not carry legal force until it has
commenced.
A commencement provision is usually the second or third section of an Act or

Regulation and gives a date of commencement. Generally, the naming and
commencement provisions commence upon assent or notification.
Acts frequently commence on assent or proclamation (this will usually be specified in

the Act itself). A proclamation is the publication of the commencement date of an Act
in the Government Gazette. The date is published with the consent of the Governor-
General (CTH) or the Governor (in the States).
Regulations commence on a specified date (usually specified in the Regulation itself),

or else on the date of gazettal (notification in the gazette).
The various parliamentary Gazettes can be accessed on-line via the following
websites:
• QLD: https://www.publications.qld.gov.au/group/gazettes-2019
• NSW: https://www.legislation.nsw.gov.au/#/gazettes
• VIC:http://www.gazette.vic.gov.au/gazette_bin/recent_gazettes.cfm?bct=hom
e|recentgazettes
The same process is followed for amendments to the Act itself, but not necessarily the
delegated or subordinate legislation. However, all delegated legislation will be
reviewed by the parliamentary counsel.
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Commencements can also be conditional e.g. A consequential amendments Act may

commence upon the commencement of the primary principal Act in that area.
They may also commence after a set period of time has lapsed. Each State, Territory
or Federal Parliament have different rules for the amount of time which needs to pass
before an automatic commencement of this nature. This is usually reflected in the
commencement table provisions.
The Parliamentary Counsels Offices provide legislative drafting services for the State.
They draft all Bills required for introduction into Parliament and draft or settle a wide
range of subordinate legislation, including regulations, rules, proclamations, orders
and environmental planning instruments for their state or territory.
Access to Legislation
The Internet and technology have enabled fast and easy access to legislation for
everyone, and every state and territory in Australia now allows unrestricted public
access to its legislative database.
Legislation can be accessed through the following websites:

• Commonwealth: www.legislation.gov.au
• QLD: www.legislation.qld.gov.au
• NSW: www.legislation.nsw.gov.au
• ACT: www.legislation.act.gov.au
• VIC : www.legislation.vic.gov.au
I’m sure you get the idea….
Each website provides additional information and links to aid in the interpretation of
legislation, finding legislation, explanatory notes and statements and the legislative
process that applies to that state.
Given that the legislation that real estate agents are bound to follow, it is recommended
that agents have a hard copy of each relevant act at hand for reference at all times.
As stated previously, Acts of Parliament bind all those who are affected by them. What
that means is that ignorance of the law is no excuse.
However, you may print off a copy of the act – but not know that a change has taken
place – for that reason, every state allows and provides access to legislative changes,
and it is possible to subscribe to changes in legislation through two different methods:
1. By subscription the legislative website and Parliamentary Counsels Offices. This

can be done through the legislation websites (see above).
2. By subscribing to Fair Trading Updates. Each State’s Fair Trading / Regulatory

services website has a subscribe function, where updates are pushed out to email
subscribers: See the following:
• QLD: http://www.fairtrading.qld.gov.au/newsletters.htm
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• NSW: https://www.fairtrading.nsw.gov.au/help-centre/online-
tools/enews
• VIC: https://www.consumer.vic.gov.au/latest-news
3. Another great tool to use is https://legify.com.au/. Legify helps you find the
authoritative (or as close to authoritative as possible) version of almost 14,000
Australian Acts and Regulations, instantly and direct from the legislative publishers
of the Commonwealth, States and Territories.
Just start typing the name of a piece of legislation that you're looking for, Legify will
point you to the latest and best source.
Version Currency of Legislation

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

Therefore accessing the direct source to make certain the version is current will
prevent mistakes of application of superseded legislation.
Interpreting Legislation
Many people become overwhelmed with the topic of legislation. It is after all quite a
complex topic. Common problems people have when trying to interpret legislation are:
Broad phrases
Often when opening an Act, we are faced with long paragraphs of information which
can make it difficult for people to understand the points clearly.
Legal jargon
The terminology used may at time not be common to that which is used in everyday
language and therefore requires understanding of the way the terms need to be
applied to enable someone to interpret them.
References to other pieces of legislation

Often when reading an Act, it refers to regulations, amendments Act and therefore you
need to have the ability to source additional pieces of legislation to interpret the
content.
State and Federal

Both state and federal acts may be applicable, and a person may not have the
knowledge to source these additional resources to interpret legislation correctly.
Other Common Issues

• need for words to be implied
• unforeseen developments, such as changes in technology or practice
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Interpretation Acts
Each state has an Interpretation Act that defines the legislative process and prescribes
the format and process of making legislation. In addition, it provides an aid to
interpreting legislation overcoming some of the issues and problems relating to the
interpretation of legislation in that state generally.
The rules of interpretation stated in Interpretation Act will normally apply to all other
legislation.
The key issues dealt with in the interpretation acts include:

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

• QLD – Acts Interpretation Act 1954 - An Act to assist in the shortening and
interpretation of Queensland Acts
• QLD – Statutory Instruments Act 1992 - An Act relating to statutory instruments
and for other purposes related to legislation
• NSW – Interpretation Act 1987 - An Act relating to the interpretation,
construction, application and operation of the legislation of New South Wales;
to enact certain provisions of a common or general nature; to make provision
with respect to the exercise of certain statutory functions; and for other
purposes.
• ACT – Legislation Act 2001 - An Act about legislation - The main object of this
Act is to make legislation more accessible.
• VIC – Interpretation of Legislation Act 1984 - An Act to make fresh provision
with respect to the construction and operation of, and the shortening of the
language used in, Acts of Parliament and subordinate instruments.
Within every Act is a purpose or range of objectives that the Act is designed to achieve.
These may be very short (as in the case of most acts in the ACT, or quite lengthy as
in QLD Acts). Some will have both a long and short title.
The long title is intended to provide a summarised description of the purpose or scope
of the instrument while short title is the formal name by which a piece of primary
legislation may by law be cited e.g. Property and Stock Agent Act 2002, Property
Occupations Act 2014, Estate Agent Act 1980.
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The first step in interpreting legislation is to identify the particular section to be applied,
and to establish the plain and natural meaning of the words in that section.
The normal meaning of words is best ascertained by using a standard English

dictionary. Sometimes, a special meaning is given to words by the “definition” section
of an Act, or the words will have acquired a legal or technical meaning.
Many words, phrases and sentences in legislation may have different meanings to
those founds in standard English, and the use of commas to separate phrases is of
paramount importance when reading the sections. Often, omitting a comma can
change the sense of a sentence completely.
In deciding which meaning, or range of meanings, to choose, regard should be had to

other features of the Act – such as the title, headings, structure, and surrounding
sections. If a word in a statute or subordinate legislation has a particular meaning,
then it will be incorporated in a “dictionary” contained within the Act.
These other features of the Act can be used to clarify, but should not change or distort,
the meaning of particular sections. Many points in regulations refer to sections within
the act itself.
Structure of Legislation
Acts are normally organised into a logical format, but that format is different in the
different states. The hierarchy for the division of Acts in the states is shown below,
with the highest first:
QLD NSW VIC

Title Title Title
Chapter Part Part
Part Division Division
Division Section Section
Section
The Acts will also contain the following parts:
• Contents - The outline of the Act and the various sections provided in the Act
• Application - Objective of the Act can also be referred to as Objects
• Dictionary / Definitions. This may be at the beginning of the Act (as in NSW), or
referred to in one of the first sections and listed towards the end
• Headings - The body of the legislation follows a hierarchy containing Chapters,
parts, division and subdivisions, clauses, subclauses, schedules and appendices
• Historical Notes or Endnotes- These will show previous editions and their
publication date.
• Tables of Amendment- This section lists what has been amended as well as when
the amendments took effect
• Key- This is a list of abbreviations used in subsequent sections.
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• List of Legislation- This is a list of other legislation that has affected the present
legislation
• Appendices - supplementary material usually attached at the end of a piece of
writing. Generally, it includes supplementary information, which is not strictly
compulsory to the main body of the legislation. Appendices are often added at the
end of legislation to give additional information that will help a reader understand
the materials presented
• Schedules - is a part of a Bill or a part of an Act. Bills may have a number of
Schedules that appear after the main Clauses in the text. They are often used to
spell out in more detail how the provisions of the Bill are to work in practice. If a Bill
becomes an Act of Parliament, its Schedules become Schedules of that Act
Each state has a different format for their legislation, so it is essential that you refer to
a copy of your state’s Real Estate Act in order to find your way around.
In addition, Acts and subordinate legislation may have schedules attached. These
schedules are part of the Act, and usually serve to provide more detail in a concise
format. In addition, the headings, margin notes, footnotes and endnotes are also
deemed to be part of the Act.
Interrelationship between pieces of legislation

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

law imposes a speed limit of 50kph and another a limit of 70kph on the same road, it
is possible to obey both. There is case law on that. If the conflict is between Act A and
a piece of subsidiary legislation, Act A usually prevails. But, of course, Act A or some
other Act might say otherwise. If the conflict is between two state Acts, those questions
have to be resolved by statutory interpretation. Often the more recently enacted Act
prevails but beginners should be careful on this and get legal advice. Likewise, if the
conflict is between two pieces of state subsidiary legislation. If the conflict is between
state legislation and the Commonwealth’s, the Commonwealth’s prevails. But, of
course, a Commonwealth Act might say otherwise. The extent to which one piece of
legislation prevails over another is also sometimes hard to know. Again, there is case
law on that. If two pieces of legislation seem to conflict, it is usually advisable to get
legal advice on whether there is a conflict, on which prevails, and to what extent it
prevails.
Individual piece of legislation (say Act A) exists alongside case law some of which is
on statutory interpretation. Some case law might be about Act A itself. Which case law
is relevant to a particular question of statutory interpretation will depend on the
question. The meaning of legislation sometimes depends on what case law says.
Readers who are not lawyers should be careful when reading case law because one
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case’s decision may have been overruled or modified by a later case. Therefore, a
case that seems to answer a question of statutory interpretation may in fact not.
Key principles for reading and interpreting legislation

To assist judges in interpreting statutes there, exist various aids that they may refer
to. Aids to statutory interpretation are divided into internal aids and external aids.
These are sometimes referred to as intrinsic aids and extrinsic aids to interpretation.
Internal/Intrinsic Aids
Intrinsic aids are matters within an Act itself which may help make the meaning clearer.
The court may consider the long title, the short title and any preamble. Other useful
internal aids may include headings before a group of sections and any schedules
attached to the Act. There are also often marginal notes explaining different sections;
however, these are not generally regarded as giving Parliament's intention as they will
have been inserted after parliamentary debates and are only helpful comments put in
by the printer.
The Interpretation Act 1978 section 6 states that unless the contrary intention appears,
words importing the masculine gender also include the feminine and words importing
the feminine gender also include the masculine. In addition, words in the singular also
include the plural and words in the plural include the singular.
Internal aids are those contained in the statute itself and consist of:
• The long title of the Act
• Explanatory notes
• Other sections of the Act
• Definition sections in the Act
External/Extrinsic Aids
Material that does not form part of an Act, but which may assist in the interpretation of
that Act and which may help put an Act into context. Such material includes
explanatory memoranda, reports of law reform commissions and parliamentary
committees and second reading speeches, previous Acts of Parliament on the same
topic, earlier case law and case law from other jurisdictions, and dictionaries of the
time and Hansard can now be considered. Also known as 'extrinsic aids'.
Explanatory Memoranda
An explanatory memorandum is an executive document issued at the same time as a
bill. Its purpose is to explain the aims and operation of the statute. In statutory
interpretation, if the meaning of a provision in an Act is ambiguous or obscure,
reference may be made to explanatory memoranda in order to ascertain the meaning
of the provision.
Law Reform Commission Reports

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

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

A speech given by the relevant Minister in parliament outlining the policy underlying a
proposed law (a Bill) during the second reading. Second reading speeches are
included in the published parliamentary debates known as Hansard. They are
particularly useful in determining the historical intent of new and amending legislation.
As an aid to statutory interpretation, second reading speeches may be used to discern
the underlying purpose or object of a statute.
Hansard
Is the official report of what was said in Parliament when the Act was debated. It
permits Hansard to be used where the legislation is ambiguous or obscure or leads to
an absurdity, and the material relied on comprises one or more statements by a
Minister or other promoter of the Bill and such other parliamentary material as is
necessary to understand the statements, and the effect and the statements that were
relied on have to be clear.
• Dictionaries
• Textbooks
• Academic writings
Language conventions are basically different ways the writer uses and manipulates
language to encourage the audience to view something in a certain way.
Language conventions and expressions

In legislation the language conventions and expression used are important to the
interpretation of the information presented.
And/or - Used to refer to both things or either one of the two mentioned, either "and"
or "or".
Gender - Acts Interpretation Act 1901 has 23 Rules as to gender and number. In any
Act: words importing a gender include every other gender.
Hierarchy - For most purposes, the higher up a court is in the hierarchy, the more
authoritative its decisions. In the sense that decisions of the higher courts will bind
lower courts to apply the same decided principle.
Includes - To contain something as a part of something else, or to make something
part of something else.
May - Used to express possibility.
Should - Used to show when something is likely or expected.
Must - Used to show that it is necessary or very important that something is done.
Reading Rules
Literal rule
Unless a definition says otherwise, the "ordinary and natural meaning" of a word or
phrase should be used.
Mischief rule
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Legislation should be interpreted in a manner consistent with its purpose: the

"mischief" it is intended to remedy.
Golden rule
Legislation should be interpreted in a manner which avoids obvious absurdities or
inconsistencies.
Purposive approach
Text should be interpreted in a way that is consistent with the purpose of the
legislation.
Express mention of one thing to the exclusion of another
The legal concept is that if the legislature mentions specifically only certain items from
a larger class of items, it meant to include only the items specified and to exclude
those items that were omitted.
Relevant Legislation for the Real Estate Industry

The following is a list of the legislation that specifically impacts upon the role of a real
estate agent and should be fully understood by all registered and licensed agents.
Commonwealth Legislation
Competition and Consumer Act 2010, especially:
Schedule 2 - The Australian Consumer Law
• Chapter 2 - Part 2-1—Misleading or deceptive conduct
• Chapter 2 - Part 2-2—Unconscionable conduct
• Chapter 3 - Part 3-1—Unfair practices
• Div 1—False or misleading representations etc.
• s.29 False or misleading representations about goods or services
• s.30 False or misleading representations about sale etc. of land
• s.32 Offering rebates, gifts, prizes etc.
• s.34 Misleading conduct as to the nature etc. of services
• s.35 Bait advertising
Foreign Acquisitions and Takeovers Act 1975 and Regulation 2015

• Section 12 in the Act (3 in the Regulations) deal with “off the plan” sales to foreign
investors.
State Legislation
New South Wales
• Property and Stock Agents Act 2002
• Property and Stock Agents Regulation 2014
• Director General’s Guidelines for Continuing Professional Development
2013 (via OFT website)
• Residential Tenancies Act 2010 and Regulation 2019
• Fair Trading Act 1987 and Regulation 2019
Queensland
• Residential Tenancies and Rooming Accommodation Regulation 2009
• Residential Tenancies and Rooming Accommodation Act 2008
• Fair Trading Act 1989
• Property Law Act 1974
• Property Law Regulation 2013
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Victoria
• Estate Agent Act 1980
• Sale of Land Act 1962
• Residential Tenancies Act 1997
• Residential Tenancies Regulations 2021
• Australian Consumer Law and Fair Trading Act 2012
Personal Responsibility
Remember:
• As a professional Real Estate Agent, you are expected to know more about the
law and its application than:
• The people you represent and advise (your clients) and
• The people you introduce to your client (your buyers and tenants).
• Ignorance of the law is no excuse
Discrepancies in application of legislation

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

the principal licensee. This should then be investigated to undertake a risk
management strategy and identify the risks associated with the discrepancy,
assessment of the risk, implementation of treatments to remove the discrepancy such
as implementation of policy and procedures and the monitoring the risk to ensure that
discrepancies no longer occur.
Should the risk be associated with a major breach, such as an employee or principal
defrauding a trust account the Office of Fair Trading would need to be contacted to
investigate and apply the correct disciplinary action.
Other Relevant Legislation

At some time or other the following Acts and Regulations may be applicable in your
day-to-day activities in real estate and therefore it is important to be aware of these
and understand how to source access when the time comes to requiring these.
Commonwealth
Anti-discrimination and equal employment opportunity
Age Discrimination Act 2004 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Disability Discrimination Act 1992 (Cth)
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Racial Discrimination Act 1975 (Cth)

Sex Discrimination Act 1984 (Cth)
Anti-money laundering
Anti-money laundering and Counter-Terrorism Financing Act 2006 (Cth)
Consumer protection, fair trading and trade practices
Competition and Consumer Act 2010 and Regulations (Cth)
Employment and industrial relations
Fair Work Act 2009 and Regulations (Cth)
Environmental and sustainability
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Financial services, financial probity and taxation
Corporations Act 2001 and Regulations (Cth)
Crimes Act 1914 (Cth)
Financial Services Reform Act 2001 (Cth)
Income Tax Act 1986 and Regulations 2015 (Cth)
Franchises and business structure
Competition and Consumer (Industry Codes—Franchising) Repeal Regulation
2014 (Cth)
Property management/leases and tenancy agreements
All legislation is state specific see below
Property sales
Native Title Act 1993 (Cth)
Family Law Act 1975 (Cth)
Other state specific legislation applies – see below
Occupational health and safety
See state specific legislation below
Privacy
Privacy Act 1988 (Cth)
Foreign Investment
Foreign Acquisitions and Takeovers Act 1975 (Cth)
Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (Cth)
Register of Foreign Ownership of Water or Agricultural Land Act 2015 (Cth)
Foreign Acquisitions and Takeovers Regulation 2015 (Cth)
Foreign Acquisitions and Takeovers Fees Imposition Regulations 2020 (Cth)
Register of Foreign Ownership of Water or Agricultural Land Rules 2017 (Cth)
Secret Commissions
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See state specific legislation
New South Wales

Anti-discrimination Act 1977 (NSW)
Anti-discrimination Regulation 2019 (NSW)
Fair Trading Act 1987 and Regulation 2019 (NSW)
Fair Work Act 2009 and Regulations (Cth)
Employment Protection Regulation 2017 (NSW)
Income Tax Act 1986 and Regulations 2015 (Cth)
Competition and Consumer (Industry Codes—Franchising) Repeal Regulations
2014 (Cth)
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)
Property sales
Home Building Act 1989 (NSW)
Conveyancing Act 1919 (NSW)
Property and Stock Agents Act 2002 (NSW)
Property and Stock Agents Regulation 2014 (NSW)
Strata Schemes Management Act 2015 (NSW)
Strata Schemes Management Regulation 2016 (NSW)
Real Property Act 1900 (NSW)
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Land Sales Act 1964 (NSW)

Environmental Planning and Assessment Amendment Act 1997 (NSW)
Crimes Act 1900 (NSW)
Duties Act 1997 (NSW)
Work Health and Safety Act 2011 and Regulation 2017 (NSW)
Privacy
Foreign Investment
Foreign Acquisitions and Takeovers Fees Imposition Regulation 2015 (Cth)
Secret Commissions
Crimes Act 1900 (NSW)
Note: This is not an exhaustive list of the real estate / consumer protection
legislation applicable in the states and territories mentioned above.
Queensland
Anti-discrimination Act 1991 (QLD)
Fair Trading Act 1989 (QLD)
Fair Work Act 2009 and Regulation (Cth)
Industrial Relations Act 2016 (QLD)
Environmental Protection Regulation 2019 (QLD)
Corporations Act 2001 and Regulation (Cth)
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Income Tax Act 1986 and Regulation 2015 (Cth)
Competition and Consumer (Industry Codes—Franchising) Repeal Regulation
2014 (Cth)
Competition and Consumer Act 2010 and Regulation (Cth)
Residential Tenancies and Rooming Accommodation Act 2009 (QLD)
Residential Tenancies and Rooming Accommodation Regulation 2009 (QLD)
Property sales
Land Sales Act 1984 (QLD)
Land Title Act 1994 (QLD)
Land Title Regulation 2015 (QLD)
Property Occupations Act 2014 (QLD)
Property Occupations Regulation 2014 (QLD)
Native Title Act (Queensland) Act 1993 (QLD)
Agents Financial Administration Act 2014 (QLD)
Local Government Act 2009 (QLD)
Local Government Regulation 2012 (QLD)
Crime and Corruption Act 2001 (QLD)
Crime and Corruption Regulation 2015 (QLD)
Duties Act 2001 (QLD)
Duties Regulation 2013 (QLD)
Work Health and Safety Act 2011 (QLD)
Privacy
Information Privacy Act 2009 (QLD)
Information Privacy Regulation 2009 (QLD)
Invasion of Privacy Act 1971 (QLD)
Foreign Investment
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Secret Commissions
Crime and Corruption Act 2001 (QLD)
Note: This is not an exhaustive list of the real estate / consumer protection
legislation applicable in the states and territories mentioned above.
Victoria
Equal Opportunity Act 2010 (VIC)
Australian Consumer Law and Fair Trading Act 2012 (VIC)
Australian Consumer Law and Fair Trading Regulations 2012 (VIC)
Fair Work Act 2009 and Regulation (Cth)
Sustainability Victoria Act 2005 (VIC)
Income Tax Act 1986 and Regulation 2015 (Cth)
Competition and Consumer (Industry Codes—Franchising) Repeal Regulations
2014 (Cth)
Property Law Act 1958 (VIC)
Residential Tenancies Regulations 2021 (VIC)
Residential Tenancies Act 1997 (VIC)
Property sales
Property Law Act 1958 (VIC)
Conveyancers Act 2006 (VIC)
Land Act 1958 and Regulations 2016 (VIC)
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Local Government Act 2020 and 1989 (VIC)

Victorian Environmental Assessment Council Act 2021 (VIC)
Crimes Act 1958 (VIC)
Duties Act 2000 (VIC)
Occupational Health and Safety Act 2004 (VIC)
Occupational Health and Safety Regulations 2017 (VIC)
Privacy
Privacy and Data Protection Act 2014 (VIC)
Foreign Investment
Secret Commissions
Crimes Act 1958 (VIC)
Real Estate Codes of Conduct
Within the Regulations applicable for each state are Codes of Conduct, Rules of
Conduct or Codes of Practice.
These represent the minimum standards that apply to workers, whether licensed or
registered in the industry. Failure to adhere to the Code or Rules renders the individual,
as well as the corporation liable to fines and other penalties.
Extreme breaches of the Act or any other part of the act included within the subordinate
legislation (regulation, guidance notes etc), may result in the loss of a licence or
revocation of a registration certificate. Don’t think that it can’t happen to you – it has.
Normally, if a breach of rules in identified by the regulatory authority, that is likely to

trigger an investigation into other aspects of agency operation.
There are a number of industry associations that also publish Codes of Conduct or
have specific requirements that agents must follow. For instance, the Real Estate
Institutes in the different states and territories may have established Codes of Conduct
or other specific requirements that are a condition of membership.
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Codes such as these are not legally binding, but if a member of that particular
organisation is found to be in breach of their internal code, then they may be disbarred
from membership. Continued membership may also be dependent on the individual
member meeting their statutory obligations for the practice in their state or territory.
Fines and Penalties
A penalty unit is a measurement used to determine the amount of a fine for an

offence. The value of the unit is multiplied by the number of units set for the offence
by the legislation.
The use of a penalty unit is more efficient than a monetary amount given that fine
amounts are constantly changing with inflation and public policy. It avoids the time
and administrative costs of amending legislation.
In Victoria, the value of a penalty unit is set on 1 July each year by the Department of
Treasury and Finance, under authority granted by section 5(3) of the Monetary Units
Act 2004. The current value of a unit in Victoria is $165.22.
In Queensland the legislation which governs how penalties and sentences are
handed down, including penalty units, is the Penalties and Sentencing Act 1992.
One penalty unit in Queensland, for most offences, currently corresponds to the
dollar amount of $133.45. This has been the case since July 2020. For offences
against certain local laws or laws under specific legislation, such as the Work Health
and Safety Act 2011, the dollar amount for a penalty unit is slightly less. The value is
increased by 3.5% each year on 1 July unless the Queensland Treasurer nominates
another amount before 1 March.
In NSW the value of a penalty unit is $110 as at 27 th March 2021. This is set out in
Section 17 of the Crimes (Sentencing Procedure) Act 1999.
Conclusion
This Unit of competency has looked at the processes involved in creating and
distributing legislation, so that everyone involved in the industry is able to access and
understand fully the regulatory framework in which the industry operates.
It is vital, in this day and age, that agents have access to the legislation and regulations
in the industry, and ensure that both they, and their colleagues frequently check to
ensure that they are fully up to date with changes as they occur.
The assessment that accompanies this workbook will enable you to investigate, for
yourself, the websites and resources available to you, and you will need to have
access to the internet to be able to successfully complete the tasks required and gain
competency in this Unit.
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CPPREP4003 - Access and interpret legislation in real estate (Release 1)

Student Learner Guide

Student Learner Guide

The Legislative Framework (Three Sources of Law) ........................................................................... 5

Discrepancies in application of legislation .................................................................................... 28

Figure 1: Beginners Guide to Legislation (Video Tutorial)

The Legislative Framework (Three Sources of Law)

Gradually, 3 main court systems were established:

An example of how Equity and Common Law might differ is this:

Considerations to be taken into account will include:

determined by a long line of cases. Case law on interpretation of one section of an

The Australian Legal System

Representative government emerged in the 1840s and 1850s, and a considerable

However, as a result of the Constitution of Australia, Australian statute law includes

In Australia, only a Parliament may make legislation or authorise the making of

History of Law in Australia

Federation and the Australian Constitution

“…peace, order and good government of the Commonwealth… in respect to trade,

Whilst State Constitutions can be amended by state parliament, the Commonwealth’s

It has proved very difficult to amend the Constitution as it requires consistent

Federal (Commonwealth) Legislative Powers

Federation was intended to address problems caused by having separate colonies on

Example: In 1955, Prime Minister Menzies passed the Communist Party

State / Territory Legislative Powers

Their powers are protected by the Australian Constitution, and Commonwealth

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

Parliaments make legislation or authorise the making of legislation by enacting an Act.

An Act is essentially a sequence of provisions containing statements and rules. What

Legislation may have its effect by:

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

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

Delegated / Subordinate Legislation

Delegated legislation (also referred to as subordinate legislation or secondary

Delegated legislation is typically in the form of regulations, rules or executive

The following are all forms of Delegated Legislation:

Delegated Authorities (Regulators)

As long as a by-law is made correctly, within the jurisdiction of the authority, a

Acts and Subordinate Legislation in the Real Estate Industry

State/Territory Legislation – Principal Act Subordinate Legislation

How Statute Legislation is Created

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

Draft Bill stage

A distinction is made between a Government Bill, introduced by the appropriate

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

A commencement provision is usually the second or third section of an Act or

Acts frequently commence on assent or proclamation (this will usually be specified in

Regulations commence on a specified date (usually specified in the Regulation itself),

Commencements can also be conditional e.g. A consequential amendments Act may

Legislation can be accessed through the following websites:

I’m sure you get the idea….

1. By subscription the legislative website and Parliamentary Counsels Offices. This

2. By subscribing to Fair Trading Updates. Each State’s Fair Trading / Regulatory

Version Currency of Legislation

Each legislation website includes version currency on each relevant legislation

References to other pieces of legislation

State and Federal

Other Common Issues

The key issues dealt with in the interpretation acts include:

The following are the relevant interpretation acts:

The normal meaning of words is best ascertained by using a standard English

In deciding which meaning, or range of meanings, to choose, regard should be had to

QLD NSW VIC

The Acts will also contain the following parts:

Interrelationship between pieces of legislation