Unit 3- Assessment 1
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TAFE NSW - Sydney Institute *
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CPP41419
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ssessment Conditions: To be deemed competent in this unit you will need to be able to demonstrate your skills and knowledge by undertaking the following assessment tasks:- • Demonstrate that you can explain real estate agency functions and business structure, • demonstrate that you can interpret professional
practice guidelines, • can explain employment opportunities in real estate • understand the required communication skills needed to work in real estate, and • identify professional development pathways available to you within real estate To complete this assessment, you will need access to legislation on the internet and, if
you are working in a real estate office, access your agency’s Policies and Procedures. If you are not working in an office, you may access the resources contained in the Learning Management System. These resources include: - • Regulator and licensing requirements for NSW which are summarized in the Learners guide and also available from www.fairtrading.nsw.gov.au. • Qualification and professional development requirements for real estate roles which are summarized in the Learners Guide and also available from www.fairtrading.nsw.gov.au. • Real estate employment terms and conditions which
are summarized in the Learners Guide and also available from www.fairwork.gov.au
• Real estate professional practice codes of conduct which are summarized in the Learners Guide and also found in the Rules of Conduct in the Property and Stock Agents Regulation 2014. You will demonstrate competence by undertaking the projects and answering the questions contained in thefollowing assessment. INSTRUCTIONS TO STUDENT Overview Prior to undertaking this assessment, you are to have completed reading all training material. Once you have completed undertaking that, read all assessment instructions carefully before attempting the assessment. If you have any questions, or do not fully understand the instructions please consult with your allocated trainer/assessor. It is important that you understand and adhere to the terms and conditions, and fully address each assessment task. If any assessment task is not fully addressed, then your assessment will be returned to you for resubmission. Your trainer/assessor will remain available to support you throughout the assessment process. Written Work Assessment tasks are used to measure your understanding and underpinning skills and knowledge of the overall unit of competency. When undertaking any written tasks please ensure that you address the following: - o Address each question including all sub points o Demonstrate that you have researched the topic thoroughly o Cover the topic in a logical, structured manner o Your work is well presented, well referenced and checked for spelling and grammar o If you are supplying separate documents that they include your full name, USI, and assessment task number on each and every page. Active Participation It is a condition of your enrolment that you actively participate in all your studies and that
includes completing all assessment tasks on time. Plagiarism Plagiarism is taking and using someone else’s thoughts, writings or inventions and representing them as your own. Plagiarism is a serious act and may result in a learner’s exclusion from
the course. When you have any doubts about including the work of other authors in
your assessment, either consult your trainer/assessor or include full details in your assessment acknowledging the other persons work and where it came from. Eg you
may source material from NSW Fair Trading’s web site in undertaking a task. Not in
brackets after the quotation (Source. www.fairtarding.nsw.gov.au and the page it came from. The following list outlines some of the activities for which a learner can be accused of plagiarism: - o Presenting any work by another individual as their own work even if it is unintentional o Handing in assessments markedly similar or copied from another learner o Presenting the work of another individual or group as
their own work o Handing in assessments without the adequate acknowledgement of sources used, including assessments taken totally or in part from the internet If it
is identified that you have plagiarised within your assessment, then a meeting will be organised to discuss the matter further with you, and further action may be taken accordingly. Collusion Collusion is the presentation by a learner of an
assignment or assessment task as their own that is, in fact the result or in part of unauthorised collaboration with another person or persons. Collusion involves the co-operation of two or more learners in plagiarism or other forms of academic misconduct and, as such, both parties are subject to disciplinary action. Collusion or
copying from other students is not permitted and will result in a “0” grade and “NYC”. Assessment Outcomes There are only two outcomes for all assessments tasks that you submit. They are: S = Satisfactory or NS = Not Satisfactory i.e. requires more training and or experience and further assessment. Once a student has completed all assessment tasks for a unit of competency they will be marked either “Competent” ( C ), or “Not Yet Competent” (NYC) If you are marked NYC you will be provided with feedback from your assessor and will be given another chance
to re-submit your assessment tasks. If after two attempts to gain competency you are still marked “NYC” you will be required to re-enrol in the unit of competency. Additional Evidence If we, at our sole discretion, determine that we require additional or alternative information/evidence in order to determine competency, you must provide us with such information/evidence, subject to privacy and confidentiality issues. We retail this right at any time, including after submission of your assessment material. Confidentiality We will treat anything, including information about your work, workplace, employer, or any personal information included in any assessment material with strict confidence, according to law and our Privacy Policy. While we may request you to provide information or details relating to your work it is your responsibility for obtaining necessary consents and ensuring privacy rights and confidentiality obligations are not breached by you in supplying us with such information. If you are supplying documents that includes information that would breach the Privacy Principles, you may redact that information. Student Declaration: I declare that a. the assessment submitted by me
is all my own work, b. that I have not copied from another person’s work with the exception of where I have listed the referenced documents or work and c. that no part of this assessment has been written for me by another person. In ticking I agree below. I acknowledges that I understand the assessment process and my rights to appeal the decisions made in an assessment.
A:
o
1.I Agree
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Q:
PROJECT 1 – Legislation and Interpreting Legislation In this section students will demonstrate their skills and knowledge in relation to: - • Identifying and explaining common problems with interpreting legislation and consequences for misinterpreting legislation • Using guidance material to support interpretation of legislation • Identifying and analysing legislation relevant to real estate activities • Explaining the role of regulators in relation to legislation Instructions You will need to research information with your responses for each task. You should use a variety
of sources to gather information including training resources, workplace policies and procedures, legislation websites and government and industry bodies. a. Interpreting Legislation and consequences of misinterpretation i. Briefly describe the legislative framework that exists in Australia with regard to making laws. ii. What are the main sources of law and give a brief explanation of each? iii. What are
the key components of legislation? iv. Set out the main structure of legislation v. When sourcing and reading legislation you should be aware of the interrelationship between Acts, common law and also between different legal jurisdictions. From your research explain what prevails when: - • There is a conflict between Commonwealth (federal) legislation and State legislation • There is a conflict between legislation and common law. vi. Identify and explain the most common
problems that can arise when interpreting legislation. In your answer detail how you would resolve the problems of interpretation?
A:
i) Australia is a Federation of six states, which together with two self governing territories, have their own constitutions, parliaments, governments and laws. Each
state, and territory, has a parliament as well, who all have the power to create laws over the area that they govern. In the Australian Constitution the Commonwealth or federal parliament was given certain powers to legislate exclusively in certain areas. All other powers not nominated in the Constitution remained vested with the states. Also, we should remember that in addition to Commonwealth state and territory parliaments, local councils are also law-making institutions. Their laws are generally referred to as ordinances. Laws made by the federal parliament is generally referred to as Commonwealth Law.
ii) ?Sources of law: There are several main sources of law in Australia. There is legislation that is made by Parliaments then there is case law or common-law, based on the decisions of judges in the superior courts over time.
a.Common Law: Common law is a body of legal principles that have been collected from decisions made by judges over hundreds of years. These decisions have all the time given rise to a set of basic principles that have been use over time to guide decisions in similar future cases.
b. Contract law: The law of contract is the law that arises from a promise or set of promises that form and agreement between two or more persons and that create obligations which a court will enforce. This means that an aggrieved person can take action in a court for any breach of the terms on an agreement.
c. Equity: Equity is the name given to the set of principles that supplements rules of law where their application would operate harshly. Equity law is used in countries that operate under the common-law system and is aimed at making the common-law system fairer. Where equity law & common law contradict, equity law will prevail. In NSW some of the principles of equity law are embodied in the Contracts Review Act 1984.
d.Law of Torts: Tort law is law that addresses civil wrongs not arising from contractual obligations. It allows a person who has suffered legal damages to receive compensation from a person who is legally responsible for those damages.
Tort law relies on the proving of negligence. Many of the principles of Tort law are embodied in consumer protection legislation and the property, stock and business agents act, and this removes the need to prove negligence on the part part of the aggrieved party.
e. Statue law or legislation: Statute law is law made by Parliament and is expressed in legislation or statues. Legislation can be elected by any properly constituted parliament. Section 51 of the Australian Constitution lists the areas which the commonwealth government has power to legislate.
iii. Legislation comprises of several parts, being:
- Principal or primary legislation or acts of parliament
- Subordianate or secondary legislation or statutory rules such as regulations, orders, determinations and approvals or other instruments that are made under the authority of an act to support that act. For example, under section 32 of the property, stock and business agents act, the commissioner of fair trading can from
time to time Institute Rules defining what a licensee has to do to properly supervise their business
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iv. The common structure usually contains the following attributes:
- First Page: Title, year of making, number and years, application
- Second or third page: Table of provisions/contents
- Third or fourth page: Long title – statement of what the act does
- Subsequent sections: Body of the act/regulation, Sections or regulations – the lowest groupings or levels, An act will always contain sections, a regulation would always contain regulations or rules, Section 1 usually states the short title of the act or regulation/rules, Section 2 usually contains information about with the act or regulation/rules commences, Sections may be further divided into subsections and paragraphs
- At the end - Schedules – optional, Application, transitional or savings provisions, table of acts, table of statutory rules, table of amendments and endnotes including table
v. Where there is Commonwealth legislation, and it clashes with the state legislation, then the Constitution says that the federal legislation will prevail. As commerce becomes more complex issues can arise that cannot be simply dealt with. To overcome these problems state and federal leaders meet on a regular basis by an organisation called the council of Australian government COAG. They consider issues and on occasions agree to cede power to the Commonwealth or agree on universal legislation throughout Australia.
If common law and legislation clashes
Legislation is law made by Parliament, while common-law is a set of legal principles that have evolved over time. If there is a conflict between legislation and the common-law, that the legislation will override the common-law if that conflict is absolutely clear. Where the contract is not clear courts will decide the interaction between the two if it becomes an issue in litigation. Legislation made by Australian parliament is generally referred to as federal or Commonwealth law.
vi. The most common problems agents have to deal with are:
- Ambiguous words
- Broad Phrases
- The need for words to be implied
- Printing and drafting errors
- Specific definitions that may vary to commonly used meaning in normal society
Resolving the problem of interpretation:
a. The text of legislation: To identify the particular section to be applied, and to establish the plain and natural meaning of the words in that section.
b. Interpretation in context: The words, phrases and sentences in legislation will have different shades of menaing. In deciding which meaning, to choose, regard should be had to offer other features of the act- such as title, headings, struture and surrounding sections.
c. Legislative purpose and objectives: The purpose or objectives can, however, be an indeterminate or elusive feature of an act, and their importance should not be overstated.
d. The human rights dimension: It can be relavant in deciding whoch shade of meaning should be chosen: ordinarily, the preferred meaning is that which results in least detriment to indivudual liberty, rights or priviliges.
e. Subordinate legislaiton: A subordinate rule must be interpreted consistently with the act under which it was made.
f. Regulation of Government:Legislation will usually state whther it binds the crown that is whether government agencies and personnel are themselves required to comply with the legislation.
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Q:
PROJECT 1 – Legislation and Interpreting Legislation b. Guidance Information to interpret legislation What guidance information is available to help you interpret legislation? In your answer set out the Judicial Statutory Rules.
A:
Judicial Statutory Rules:
There are four judicial statutory rules that have evolved over time for statutory interpretation of Acts & Regulations. Of these, the plain meaning & purposive approach are favoured in Australia.
1. The plain meaning or literal rule:
Unless a definition in the act of regulation says otherwise, the plain or usual meaning of the word should be used. This meaning can be established by a standard dictionary (such as the Oxford or Macquarie dictionary), and/or legal dictionary.
2. The golden rule:
This applies if the plain meaning rule leads to an inconsistency or absurdity. In the
situation, the plain and usual meaning can be modified to ensure consistency or sense.
3. The mischief rule:
This role requires that attempts be made to determine the intention and/or purpose of the legislation.
4. The purposive approach:
This interprets text in a way that is consistent with the purpose of the legislation. It relies of the purpose or objective provisions in the legislation.
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Q:
PROJECT 1 – Legislation and Interpreting Legislation c. Identify and Analyse Legislation relevant to real estate in NSW i. List at least five (5) Acts that are directly relevant to real estate activities in NSW. ii. From the list below name the main legislation that govern the following areas: You must give the name of the Act
and its year and whether it is state or federal legislation. a) Real estate agents: licensing and conduct b) Property sales and management c) Leasing residential property d) Privacy e) Fair trading and consumer protection f) Anti-discrimination and equal employment g) Work health and safety/occupational health and safety h)
Environmental (sustainability) i) Employment and industrial relations j) Planning and zoning k) Foreign investment l) Secret commission iii. You are to access and analyse two pieces of legislation from the list below, and to provide a report that addresses all the points that are asked to be covered. The legislation you can choose from is:- • Property and Stock Agents Act 2002 • Residential Tenancies Act 2010 • Workplace, Heath and Safety Act 2011 • Competition and Consumer Act 2010 • Work, Health and Safety Act 2011 For each report you must cover the following:- • From where did you source the legislation (if internet give the name of
the internet site)? • Explain in full for each Act how you established that the
legislation you accessed was current. Give the date of the last adjustment and the date and time you accessed the legislation. • Give the full title of the legislation including the year of enactment, the commencement date and number of the Act (if applicable) • A summary of the key purpose of each Act • Set out the structure and key components of each Act. What are all the parts in the Act (part number and title) and also what is the total number of sections contained in the Act. • Detail two breaches that the Act identifies and the penalty for each breach. If the penalty is shown as points then the number of the points and then calculate their value. • If the Act has an accompanying Regulation, the name of the Regulation and its commencement date iv. Explain the relationship between codes of practice and codes of conduct.
A:
I. a. Competition and Consumer Act 2010
b. Privacy Act 1998
c. Fair Work Act 2009
d. Financial Services Reform Act 2006
e. Anti-money laundering and counter terrorism Financing Act 2006
2. a) Real estate agents: licensing and conduct – Property and Stock Agents Act 2002 and Property and Stock Agents Act Regulations 2014 - State
b) Property sales and management – Property and Stock Agents Act 2002 and Property and Stock Agents Act Regulations 2014 - State
c) Leasing residential property – Residential Tenancies Act 2010 - State
d) Privacy - Privacy Act 1998 - Federal
e) Fair trading and consumer protection – Fair trading Act 1987 - State
f) Anti-discrimination and equal employment – Anti Discrimination Act 1977 - State
g) Work health and safety/occupational health and safety – Work health and safety
act 2011 - State
h) Environmental (sustainability) - Environment Protection Act 1997 - Federal
i) Employment and industrial relations - Fair Work Act 2009 - State
j) Planning and zoning- Environmental Planning and assessment Act 1979 - State
k) Foreign investment – The Australian Securities and Investment Commissions Act 2001 - Federal
l) Secret commission – Crimes Act 1900- State
III) 1. • Work, Health and Safety Act 2011 - https://www.legislation.gov.au/Details/C2017C00305
Act No. 137 of 2011 as amended, taking into account amendments up to Parliamentary Workplace Reform (Set the Standard Measures No. 1) Act 2022
An Act relating to work health and safety, and for related purposes
Administered by: Attorney-General's
Incorporated Amendments
Registered 01 Mar 2022
Start Date 23 Feb 2022
The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:
(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work; and
(b) providing for fair and effective workplace representation, consultation, co operation and issue resolution in relation to work health and safety; and
(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier
and safer working environment; and
(d) promoting the provision of advice, information, education and training in
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relation to work health and safety; and
(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and
(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and
(g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and
(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.
Structure and component of Act:
Part 1—Preliminary
Part 2—Health and safety duties
Part 3—Incident notification
Part 4—Authorisations
Part 5—Consultation, representation and participation
Part 6—Discriminatory, coercive and misleading conduct
Part 7—Workplace entry by WHS entry permit holders
Part 8—The regulator
Part 9—Securing compliance
Part 10—Enforcement measures
Part 11—Enforceable undertakings
Part 12—Review of decisions
Part 13—Legal proceedings
Part 14—General
Schedule 1—Application of Act to dangerous goods and high risk plant
Schedule 2—The regulator and local tripartite consultation arrangements and other local arrangements
Breaches and Penalties:
Offence to fail to comply with order
(1) A person must not, without reasonable excuse, fail to comply with an order under this Division.
Penalty:
(a) In the case of an individual—$50 000.
(b) In the case of a body corporate—$250 000.
Confidentiality of information
(1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7).
(2) The person must not do any of the following:
(a) disclose to anyone else:
(i) the information; or
(ii) the contents of or information contained in the document;
(b) give access to the document to anyone else;
(c) use the information or document for any purpose.
Penalty:
(a) In the case of an individual—$10 000.
(b) In the case of a body corporate—$50 000.
2. Competition and Consumer Act 2010- https://www.legislation.gov.au/Details/C2011C00003
Act No. 51 of 1974 as amended, taking into account amendments up to Act No. 148 of 2010
An Act relating to competition, fair trading and consumer protection, and for other purposes
Administered by: Broadband, Communications and the Digital Economy; Infrastructure and Transport; Innovation, Industry, Science and Research; Treasury; Industry, Innovation, Science, Research and Tertiary Education
General Comments: This compilation is affected by a retrospective amendment, please see Competition and Consumer Legislation Amendment Act 2011 [Act No. 184, 2011], for details. This compilation is affected by a retrospective amendment, please see Statute Law Revision Act 2012 [Act No. 136 of 2012], for details.
Registered 04 Jan 2011
Start Date 01 Jan 2011
End Date 12 Apr 2011
Object of this Act
The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.
Application of Act to Commonwealth and Commonwealth authorities
(1) Subject to this section and sections 44AC, 44E and 95D, this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.
(2) Subject to the succeeding provisions of this section, this Act applies as if:
(a) the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and
(b) each authority of the Commonwealth (whether or not acting as an agent of the
Crown in right of the Commonwealth) in so far as it carries on a business;
were a corporation.
(3) Nothing in this Act makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence.
(3A) The protection in subsection (3) does not apply to an authority of the Commonwealth.
(4) Part IV does not apply in relation to the business carried on by the Commonwealth in developing, and disposing of interests in, land in the Australian Capital Territory.
Structure and Key Components:
Volume 1
• Part I—Preliminary
• Part II—The Australian Competition and Consumer Commission
• Part IIA—The National Competition Council
• Part III—The Australian Competition Tribunal
• Part IIIAA—The Australian Energy Regulator (AER)
• Part IIIA—Access to services
• Part IV—Restrictive trade practices
• Part IVB—Industry codes
• Part VI—Enforcement and remedies
• Part VIA—Proportionate liability for misleading and deceptive conduct
• Part VIB—Claims for damages or compensation for death or personal injury
• Part VII—Authorisations, notifications and clearances in respect of restrictive trade practices
• Part VIIA—Prices surveillance
• Part VIII—Resale price maintenance
• Part IX—Review by Tribunal of Determinations of Commission
Volume 2
• Part X—International liner cargo shipping
• Part XI—Application of the Australian Consumer Law as a law of the
Commonwealth
• Part XIAA—Application of the Australian Consumer Law as a law of a State or Territory
• Part XIA—The Competition Code
• Part XIB—The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
• Part XIC—Telecommunications access regime
• Part XID—Search and seizure
• Part XII—Miscellaneous
• Part XIII—Application and transitional provisions relating to the competition provisions
Volume 3
• Schedule 1—The Schedule version of Part IV
o Part 1—Schedule version of Part IV
• Schedule 2—The Australian Consumer Law
o Chapter 1—Introduction
o Chapter 2—General protections
o Chapter 3—Specific protections
o Chapter 4—Offences
o Chapter 5—Enforcement and remedies
Breach: Federal Court may make certain orders
(1) The Federal Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person is in breach of:
(a) a uniform energy law that is applied as a law of the Commonwealth; or
(b) a State/Territory energy law.
(2) If the order declares the person to be in breach of such a law, the order may include one or more of the following:
(a) an order that the person pay a civil penalty determined in accordance with the law;
(b) an order that the person cease, within a specified period, the act, activity or practice constituting the breach;
(c) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;
(d) an order that the person implement a specified program for compliance with the law;
(e) an order of a kind prescribed by regulations made under this Act.
A person must not do any act or thing in relation to the arbitration of an access dispute that would be a contempt of court if the Commission were a court of record.
Penalty: Imprisonment for 6 months.
Failing to attend as a witness
A person who is served, as prescribed, with a summons to appear as a witness before the Commission must not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by a member of the Commission.
Penalty: Imprisonment for 6 months.
IV. Code of Ethics and Code of Conduct are the standards that a group must adhere to, so as to remain the member of the organisation. The primary difference
between code of ethics and code of conduct is that code of ethics is a set of principles which influence the judgement while the code of conduct is a set of guidelines that influence employee’s actions.
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Q:
PROJECT 1 – Legislation and Interpreting Legislation d. Role of Regulators in relation
to legislation. In your own words explain the role of the following government regulators in relation to legislation that affects real estate day to day operations: • NSW Fair Trading • Australian Competition and Consumer Commission • Privacy Commissioner • SafeWork NSW • NCAT – Consumer and Commercial Division
A:
NSW Fair Trading: NSW fair trading safeguards consumer rights and advises business and traders on fair and ethical practice. Besides direct services for individuals, the legislative framework the division administers sets the rules for fairness in the countless daily transactions between consumers and traders. Unfair
practices are investigated and acted upon, and a licensing system helps ensure unqualified or unfit people do not practice. NSW fair Trading is the regulatory authority in NSW that administers both the Competition and Consumer Act 2010 and the Property and Stock Agents Act 2002 and the Regulations 2014
• Australian Competition and Consumer Commission: Australian Competition and Consumer Commission ACCC is a Commonwealth body that administers and enforces the Australian Consumer Law. Its enforcement and compliance strategy are based on three levels of action: Education, negotiation and litigation.
ACCC has produces several publications to educate real estate agents as to their responsibilities under Australian Consumer Law:
-Fair and square – A guide to trade practices act for the Real Estate industry
- Guideline briefs.
• Privacy Commissioner: Its an independent office that has responsibilities under the Privacy Act 1988. The Act provides protection for:
- Personal information about individuals that are handled by Australian and ACT government agencies.
- Personal information about individuals held by all large private sector organisations, all private sector health service providers and some small businesses
- Credit worthiness information held by credit reporting agencies and credit providers
- Personal tax file numbers used by individuals and organisations
• SafeWork NSW:
Safework NSW is New South Wales workplace health and safety regulator. They offer advice on improving work health and safety, provide licences and registration for potentially dangerous work , investigate workplace incidents and enforce work health and safety laws in NSW.
• NCAT – Consumer and Commercial Division
Matters heard by NCAT are retail lease matters previously heard in Administrative decision Tribunal and dividing fences matters previously dealt with by local Land Boards. The division resolves a wide range of everyday disputes such as tenancy and residential property disputes about the supply of goods and services.