Conveyancers Licensing Bill
CONVEYANCERS LICENSING BILL
The Hon. J. W. SHAW [5.18], by leave: I move the following amendments in globo:
Page 2, clause 4, lines 24 and 25. Omit "residential property or that otherwise affects residential property", insert instead: "real property, or that otherwise affects real property (other than real property that comprises offices or buildings consisting of more than 4 floors, or more than 10 retail shops, or that is licensed under the Liquor Act 1982)".
Page 3, clause 4, lines 9 and 10. Omit "residential property", insert instead "real property".
The rationale of the various amendments has been explained in the second reading debate and I do not propose to trouble the Committee with any detailed or lengthy explanation of them in policy terms. This group of amendments effectively will widen the range of property with which the non-solicitor conveyancers could deal. It will delete the definition of residential property from clause 4 of the bill and will substitute the term "real property". However, it also contains some limitations on the classes of real property with which such conveyancers will be able to deal, that is, particularly restrictions in relation to certain commercial property. The amendments are consistent with the arguments put by the Labor Opposition in the second reading debate.
The Hon. ELISABETH KIRKBY [5.19]: I wish to place upon the record that these amendments moved in globo by the Hon. J. W. Shaw -
The TEMPORARY CHAIRMAN (The Hon. Beryl Evans): Order! I cannot hear the honourable member, and I must be able to hear what the honourable member is saying.
The Hon. ELISABETH KIRKBY: The amendments will allow conveyancers to handle large rural properties as well as carry out commercial conveyancing and residential conveyancing. The Australian Democrats do not believe that licensed
conveyancers would have the expertise to handle rural properties or commercial properties in which a great deal of money could be invested by the purchaser. For that reason the Australian Democrats will not support the amendments moved by the Opposition.
The Hon. J. P. HANNAFORD (Attorney General, and Minister for Industrial Relations) [5.20]: The Government also opposes the amendments as circulated. The arguments against these amendments were canvassed in some detail in my second reading speech. I make the point that the limitation to residential property of up to 10 hectares reflects the fact that this is the scope of work within which conveyancers operate at present, and thus within their knowledge. To go beyond that would increase the risk to the client concerned, to which the Hon. Elisabeth Kirkby adverted. Non-residential property conveyancing as a general rule is more complex and carries the possibility of ancillary transactions that add to the complexity and difficulty of the matter. To illustrate, the sale of a small shop almost always will involve also the sale of a business or stock in trade. The sale of a rural property may involve the sale of stock. Such matters require training and qualifications not held by persons currently involved in conveyancing and beyond those proposed for conveyancers. Licensed conveyancers have been introduced by the Government in response to consumer demand. In the main that demand has been associated with domestic conveyancing. It must be questioned whether additional training and qualifications that would be required to undertake non-residential conveyancing would be of any benefit to the consumer, having in mind the volume of matters that might be involved. The Government therefore opposes the amendments.
Question - That the amendments be agreed to - put.
The Committee divided.
Page 3, clause 4, lines 34-36. Omit all words on those lines.
Part 1 - Preliminary
1. (1) The regulations may include provisions of a savings or transitional nature consequent on the enactment of this Act.
(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect from the commencement of this Act or from a later date.
(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication; or
(b) to impose liabilities on any person (other than the State or an authority of the State), in respect of anything done or omitted to be done before the date of its publication.
Part 2 - Provisions consequent on enactment of this Act
pointed day", in relation to a provision of this Part, means the day occurring 12 months after the date of assent or such earlier day as may be appointed by proclamation for the purposes of that provision.
(2) The Governor may make proclamations for the purposes of the provisions of this Part.
Interim constitution of the Committee
3. The members of the Committee referred to in section 147(1)(b) are, until the appointed day, to comprise the Director-General of the Attorney General's Department and the Director of the Land Titles Office, rather than 2 licensees nominated by the Association.
Interim constitution of the Panel
4. For the purposes of section 114, the Panel is, until the appointed day, to be constituted by 1 of its solicitor members and 2 of its lay members rather than by 1 of its licensee members and 2 of its lay members, and is to include (as an additional member) the Director of the Land Titles Office.
Interim constitution of the Board
5. For the purposes of section 118, the Board is, until the appointed day, to be constituted by 2 of its solicitor members and 1 of its lay members rather than by 1 of its solicitor members, 1 of its licensee members and 1 of its lay members, and is to include (as an additional member) the Director of the Land Titles Office.
Interim constitution of the Tribunal
6. For the purposes of sections 127 and 132, the Tribunal is, until the appointed day, to be constituted by 2 of its solicitor members and 1 of its lay members rather than by 1 of its solicitor members, 1 of its licensee members and 1 of its lay members, and is to include (as an additional member) the Director of the Land Titles Office.
Interim certificates of eligibility
7. (1) For the purposes of Division 2 of Part 2, any person:
(a) who was conducting a conveyancing business (as a principal of the business or as a person responsible for the day to day management of the business) immediately before the commencement of Part 2; and
(b) who had conducted a conveyancing business (as a principal of the business or as a person responsible for the day to day management of the business) for at least 2 years prior to 1 March 1992; and
(c) who, when applying for a certificate of eligibility to hold a licence, satisfies the Committee that the person is sufficiently knowledgeable in relation to the law and practice of conveyancing to warrant being granted a licence by virtue of this clause,
is, subject to section 5, qualified to hold a licence even if the person does not have the educational qualifications, practical training or conveyancing experience approved by the Committee for the purposes of Part 2.
(2) The Committee may, for the purposes of this clause, examine any applicant as to his or her knowledge in relation to the law and practice of conveyancing and cause an inspection to be made of the accounts in relation to his or her conveyancing business.
(3) A person is not entitled to be granted a certificate of eligibility to hold a licence by virtue
of this clause unless the person lodges an application for such a certificate within 6 months after the commencement of Part 2.
(4) A member of the Committee (as constituted in accordance with clause 3) is not entitled to be granted a certificate of eligibility to hold a licence by virtue of this clause.
As a result of amendments in the other place there are no transitional provisions in the bill as introduced into this House. The proposed amendment will overcome that incredible situation. The purpose of the transitional provisions as originally included in the legislation is to recognise that some of the persons currently involved in conveyancing will not meet the qualification and practical training requirements that are to be set by the Conveyancers Licensing Committee. The transitional arrangement is, therefore, a means by which a person with some experience in conveyancing but without any qualifications may nevertheless obtain a licence. In this respect it is a significant concession to the persons concerned. However, clearly, there must be some restrictions to ensure that persons who may offer their service to the public are competent and have sufficient experience to ensure that they are not a risk to the public. The transitional provisions will allow a person who can satisfy the Conveyancers Licensing Committee of his competence and who has had at least two years' experience in the conduct of a conveyancing business prior to 1st March to obtain a transitional licence. The Government is firmly of the view that this is a reasonable benchmark for an applicant to rely on in order to demonstrate that he has gained the requisite knowledge and experience. It must be noted that the necessary experience goes to the conduct of a conveyancing business. Merely having undertaken conveyancing transactions under the supervision of another person without any of the responsibility involved is not sufficient experience for the purpose of being allowed to conduct a conveyancing business. A person, such as a clerk in a solicitor's office, who has undertaken conveyancing on this basis will not be eligible to apply for a transitional licence. I commend the amendment to the House.
The Hon. J. W. SHAW [5.45]: I move:
Page 79. After line 37, insert:
SCHEDULE 3 - SAVINGS, TRANSITIONAL AND OTHER PROVISIONS