Conveyancing Act 2004

Conveyancing Act 2004

This Act may be cited as the Conveyancing Act 2004.

This Act commences on a day to be proclaimed.

In this Act – approved institution means an authorised deposit-taking institution with a branch or head office in the State with which a scheme of arrangement that – relates in whole or in part to the keeping of trust accounts for the purposes of this Act; and is in force – has been entered into under section 147 of the Property Agents and Land Transactions Act 2016; commission means any monetary consideration or any other form of consideration to which a monetary value may be assigned; conveyancer means a person who is not a legal practitioner and who carries on a business that involves the preparation for fee or reward of – dealings within the meaning of the Land Titles Act 1980; or instruments for the purposes of any other Act or law as provided by an order made under subsection (2);Court means the Magistrates Court (Administrative Appeals Division); deemed registration means an entitlement to automatic deemed registration, within the meaning of the Mutual Recognition Act 1992 of the Commonwealth;Director means the Director of Consumer Affairs and Fair Trading; document means any record of information, and includes – anything on which there is writing; and anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and a map, plan, drawing or photograph – and a reference in this Act to a document includes a reference to – any part of the document; and any copy, reproduction or duplicate of the document or of any part of the document; and any part of such a copy, reproduction or duplicate; fiduciary default means – a defalcation, misappropriation or misapplication of trust money held by a conveyancer; or the failure of a conveyancer to account for trust money held by the conveyancer; or a breach of any duty by a conveyancer as trustee in respect of trust money held by the conveyancer; legal practitioner means an Australian legal practitioner; licence, in relation to the carrying on of business as a conveyancer, means – a licence that is issued and in force in accordance with Division 1 of Part 2; or a licence held by a person by virtue of deemed registration; prescribed offence means – an offence involving dishonesty, whether committed in Tasmania or elsewhere; or an offence involving violence, whether committed in Tasmania or elsewhere; or an offence under Part V of the Poisons Act 1971 or a similar offence under the law of another State; or an offence relating to the possession and use of a firearm, or any other weapon, that would disqualify the applicant from holding a licence under the Firearms Act 1996; or an offence against this Act; professional indemnity insurance means insurance against civil liability arising in connection with carrying on business as a conveyancer (whether the liability arises from an act or omission on the part of the insured conveyancer or on the part of another person); regulations means regulations made and in force under this Act; trust account means an account, maintained for the purposes of this Act in the State, in which trust money is required to be deposited by a conveyancer; trust money, in respect of a conveyancer, means money – that is received by the conveyancer on behalf of another person when acting as a conveyancer; and to which the conveyancer is not wholly entitled.

The Minister may, by order published in the Gazette, extend the application of this Act to instruments prepared for the purposes of any other Act or law.

A person who is not a legal practitioner must not carry on business as a conveyancer for fee or reward unless –

the person is the holder of a licence granted by the Director in accordance with this Division; or the person is the holder of a licence by virtue of holding deemed registration.

Fine not exceeding 200 penalty units or imprisonment for a term not exceeding 2 years, or both.

In this section – occupation has the meaning it has in section 4(1) of the Mutual Recognition Act 1992 of the Commonwealth; participating jurisdiction has the meaning it has in section 4(1) of the Mutual Recognition Act 1992 of the Commonwealth.

A person who intends to carry on a business as a conveyancer in the State by virtue of holding deemed registration must notify the Director of the person’s entitlement to hold deemed registration before carrying on the business. Fine not exceeding 10 penalty units.

A notification under subsection (2) – must be in a manner approved by the Director; and must be in a form approved by the Director; and is to contain any information that the Director considers necessary.

If there is a change in the information provided in a notification to the Director under subsection (2), the person referred to in that subsection must, as soon as is practicable, in a form approved by the Director, notify the Director of the change. Fine not exceeding 10 penalty units.

A person who holds a licence by virtue of holding deemed registration must not carry on business as a conveyancer in the State unless the work is within the scope of the work that the person is authorised to carry on for that occupation in the relevant participating jurisdiction. Fine not exceeding 10 penalty units.

If a person is found guilty of an offence against subsection (2), (4) or (5), the Director may – suspend or cancel the deemed registration held by the person; and disqualify the person from holding a licence by virtue of holding deemed registration for a specified period or until the person fulfils a specified condition.

The Director may, at any time, request a person, who is a licence holder by virtue of holding deemed registration, to provide the Director with any information that the Director requires in relation to the maintenance of the person’s skills and any continuing professional development undertaken by the person.

A person is ineligible to apply for a licence under section 6, or hold a licence by virtue of holding deemed registration, if – in the case of a person applying for a licence under section 6, the person does not hold the prescribed qualifications and have the prescribed experience; or he or she is an undischarged bankrupt or a person who has made an arrangement with creditors that has not been carried out; or his or her licence has been suspended or cancelled under Part 4; or he or she is disqualified from acting as a legal practitioner under the Legal Profession Act 2007 or a corresponding law within the meaning of that Act; or he or she holds a licence under the Property Agents and Land Transactions Act 2016; or he or she has, within the preceding period of 5 years, been convicted in Tasmania or elsewhere of an indictable offence and sentenced to – imprisonment for a term or terms in the aggregate of 3 years or more; or a period of detention for 3 years or more under a restriction order made under section 75(1)(e) of the Sentencing Act 1997 or an equivalent order made in any jurisdiction outside Tasmania.

For the purposes of subsection (1)(f) – a conviction in respect of which a free pardon has been granted is to be disregarded; and a person who is on parole is taken to be serving a sentence of imprisonment.

Subject to subsection (3), a person who is eligible to hold a licence may apply to the Director for a licence.

An application for a licence – is to be in an approved form; and is to be accompanied by the prescribed fee.

A person who is entitled to hold a licence by virtue of holding deemed registration is not required to make an application for the licence in accordance with this Act.

On receipt of an application for a licence under section 6, the Director must –

forward the application to the Commissioner of Police; and request the Commissioner of Police to provide a report as to whether, in the opinion of the Commissioner, the applicant is a fit and proper person to hold a licence.

After receiving a report from the Commissioner of Police under section 7(b) in respect of an application, the Director may refuse to grant a licence to the applicant only if the Director is satisfied that –

the applicant is not a fit and proper person to hold a licence having regard to the report under section 7(b); or the applicant has been convicted of a prescribed offence; or if the applicant were the holder of a licence – there would be grounds for disciplinary action against the person under section 37; or there would be grounds for suspension or cancellation of the licence under section 38.

The Director may grant an application for a licence subject to conditions, including (but not limited to) conditions of the following kind:

a condition prohibiting the licensee from acting as a conveyancer in specified kinds of transactions;

a condition prohibiting the licensee from acting as a conveyancer except in specified kinds of transactions;

a condition requiring the licensee to undertake or complete a specified course of studies within a specified period of time;

a condition requiring the licensee to undertake, by way of professional development, specified further education or training during the term of the licence.

If, during a period of 2 years after the commencement of this Act, the Director is satisfied that a person holds qualifications comparable to the prescribed qualifications and has experience comparable to the prescribed experience, the Director may, notwithstanding section 5, grant a licence to that person, but in that case the Director must impose conditions on the type of work that he or she may undertake.