Agents Act 2003

The Act defines several foundational concepts. A person “carries on business as a real estate agent” if they provide or offer to provide a real estate agent service for a principal for reward (s 8(1)). “Real estate agent service” includes buying, selling, leasing, exchanging or otherwise disposing of land, negotiating with persons to induce such transactions, collecting lease payments, managing property under a lease, collecting mortgage or terms contract payments, and acting as an owners corporation manager (s 8(2)). Similar definitions apply to stock and station agents (s 9) and business agents (s 10). Land auctioneers provide auctioneer services for land (s 11). “Assistant property agent” means a person who, as an employee, provides a real estate agent service, stock and station agent service or business agent service (dictionary). The Act creates two classes of property agent licence: class 1 and class 2 (s 23A). A class 1 licensed property agent is the highest grade, required to be the person in charge of a place of business and to manage only one place of business (ss 68A-70). “Licensed property agent” means a licensed business agent, real estate agent, or stock and station agent (s 7A). “Trust money” is money received by a licensed property agent on behalf of someone else on the basis that it is to be paid to that person or as directed (s 102(1)). The Act distinguishes between “trust money” and money received as bond under the Leases (Commercial and Retail) Act 2001, which is not trust money (s 102(2)). “Failure to account” is defined as a failure by a licensed agent to account for money or other property entrusted to them in the course of carrying on business (dictionary). The “consumer compensation fund” is a fund kept by the director-general, consisting mainly of interest paid on trust accounts and other lawfully paid amounts (ss 144-145). A “corresponding law” is a law of a State that corresponds substantially to this Act or is declared by regulation to be a corresponding law (s 174). The Act also defines “fair trading legislation” as the Fair Trading (Australian Consumer Law) Act 1992 and associated legislation (s 7). “Pre-contract information” includes details about relationships and benefits that an agent has with persons referred for professional services in relation to a sale or purchase (s 81). “Obtains a beneficial interest” in land extends to interests obtained by the agent, their family members, corporations they control, trusts where they are beneficiaries, and partnerships (s 82). The term “agent” for the purpose of occupational discipline includes both licensed agents and former licensed agents (s 40). These definitions form the conceptual backbone of the regulatory scheme.

The Act directly affects any person who carries on business as a real estate agent, stock and station agent, business agent, or land auctioneer in the ACT, whether as an individual, a partnership, or a corporation (ss 8-11, 24). It also affects individuals employed by licensed property agents to provide agent services, who must be registered as assistant property agents (ss 45-47). The Act applies to employment agents who provide services to find workers for principals (s 98A), but only Part 5A applies to them , they are not required to be licensed under the Act (the previous licensing requirement for employment agents was removed in 2024). The Act excludes certain categories from its application: executors, administrators, trustees of deceased estates, the public trustee and guardian, trustee companies, administrators/receivers/liquidators under the Corporations Act, managers under the Guardianship and Management of Property Act 1991, bailiffs, sheriffs, court officers, lawyers exercising their functions, Ministers, and entities prescribed by regulation (s 6). Employees who perform agent services solely in the course of their employment do not carry on business as agents (s 13). Silent partners in a partnership that carries on an agency business are also not taken to carry on business as agents (s 14). Publishers of advertisements are excluded (s 15). Owners corporation members who manage only one owners corporation and whose income from that role is not their primary source of income are not required to be licensed (s 8A). The commissioner for fair trading is a key administrative actor, responsible for processing applications, maintaining the register, issuing licences, imposing conditions, freezing accounts, appointing administrators, and applying to the ACAT for discipline (ss 29, 34, 68, 132, 139, 42). Authorised deposit-taking institutions (ADIs) are affected by trust account requirements, monthly reporting obligations, and stop directions (ss 105, 109-110, 133). Auditors must be qualified and conduct audits of trust records (ss 112-118). The ACAT hears occupational discipline applications and reviews of reviewable decisions (ss 42, 66, 166-168). The consumer compensation fund provides a remedy for claimants who suffer financial loss due to a failure to account (s 149). The director-general administers the fund (s 144). The Act also affects the public trustee and guardian, who may receive unclaimed trust money (s 124). In summary, the Act impacts a broad range of stakeholders in the property agency sector, from individual licensees to financial institutions and consumers.

The Act imposes numerous duties on licensed agents and assistant property agents, and confers corresponding rights on principals, buyers, sellers, and members of the public.

Key duties of licensed agents:

• Must hold a valid licence of the appropriate kind and class before carrying on business (ss 18-21, 23B).
• Must have a main place of business and notify changes (s 68).
• Each place of business must have a class 1 licensed property agent responsible for day-to-day management (ss 68A-70).
• Must not share commission with an unlicensed person (s 72). Agreements to share commission between licensed agents must be in writing and signed (s 73).
• Must not act for both buyer and seller of the same land at the same time (s 77).
• Must disclose pre-contract information to buyers and sellers before a contract is entered into (s 84). This includes details of relationships with referral recipients and any benefits received (s 81).
• Must not obtain a beneficial interest in land they are selling, unless full disclosure is made and the seller agrees in writing and no commission is paid (except with separate written agreement) (s 86).
• Must not make false or misleading advertisements (s 79) or dishonest representations about selling price estimates (s 88).
• Must keep proposed contracts for sale of residential property available for inspection (s 89A) and must not insert special conditions into proposed contracts (s 89B).
• Must have a written agency agreement signed by the principal before being entitled to commission (s 100).
• Must open and maintain trust accounts for trust money, pay money in by the next ADI business day, deal with money only as directed, and not overdraw (ss 105, 107-108).
• Must keep records of transactions for 5 years (s 127) and keep receipts for trust money (s 130).
• Must notify the commissioner of failures to account by employees within 5 business days (s 74).

Key duties of assistant property agents:

• Must be registered (ss 45-47).
• Must not sign agency agreements (s 75A).
• Must not withdraw money from a trust account (s 107A).
• Must disclose pre-contract information (s 85).
• Must not obtain beneficial interests in land (s 87).
• Must notify their employer if disqualified (s 76).

Rights:

• Any person may apply for a licence or registration (ss 29, 53). Applicants must advertise their intention and may receive objections (ss 28, 52).
• Applicants and licensees have the right to review of reviewable decisions by the ACAT (sch 1, s 168). Decisions include refusal to issue or renew a licence, imposition of conditions, and appointment of an administrator.
• Claimants who suffer financial loss due to a failure to account may claim compensation from the consumer compensation fund (s 149).
• A principal who suffers a failure of the agent to comply with the agency agreement formalities may have the court order recovery of commission if the failure was inadvertent (s 100(2)-(3)).

The Act provides a range of criminal penalties and administrative enforcement mechanisms. Maximum penalties are expressed in penalty units: at the republication date, a penalty unit is $160 for an individual and $810 for a corporation (see Legislation Act 2001 s 133). Many offences are strict liability.

Criminal penalties (maximums):

• Carrying on business without a licence (real estate, stock and station, business): 100 penalty units, imprisonment for 12 months, or both (ss 18-20).
• Land auctioneer without licence: 100 penalty units (s 21).
• Pretending to be a class 1 or class 2 agent: 100 penalty units (s 23B).
• Assistant property agent not registered: 50 penalty units, imprisonment for 6 months (ss 45-47).
• Not having class 1 agent in charge (agent): 50 penalty units (ss 68A-70).
• Sharing commission with unlicensed person: 50 penalty units (s 72).
• Acting for buyer and seller simultaneously: 100 penalty units (s 77).
• False or misleading advertisements: 100 penalty units (s 79).
• Failure to disclose pre-contract information: 200 penalty units (ss 84-85).
• Obtaining beneficial interest without proper disclosure: 200 penalty units, imprisonment for 2 years (s 86).
• Dishonest representation about selling price: 100 penalty units (s 88).
• Trust account offences: up to 100 penalty units (ss 106-108).
• Assistant property agent withdrawing trust money: 100 penalty units (s 107A).
• Lending licence or registration certificate: 100 penalty units, and the licence/registration is cancelled upon conviction (ss 97-98).
• Failure to comply with a substantiation notice: 100 penalty units (s 89).
• Employment agent taking fee from worker: 50 penalty units (s 98B).
• False or misleading statements: up to 100 penalty units, imprisonment for 1 year (s 169) or 50 penalty units for reckless statements (s 169(5)).

Occupational discipline: The commissioner may apply to the ACAT for an occupational discipline order if a ground exists, including contravention of the fair trading legislation, rules of conduct, licence conditions, ineligibility, ACAT orders, fraud, or prescribed grounds (s 41). The ACAT may cancel or suspend a licence or registration, and for agents may also cancel any other licence or prohibit administration of owners corporation funds (ss 43, 67).

Administrative enforcement: The commissioner may freeze accounts if trust money may have been stolen, misappropriated, or misapplied (s 132). ADIs must comply with stop directions (s 133). The commissioner may appoint an administrator to run the business of a licensed agent whose licence is suspended, cancelled, or expired, or who is missing or dead (s 139). The administrator may carry on the business and must comply with the Act (s 142).

Compensation fund: Claimants may receive compensation for actual financial loss less amounts recoverable from other sources (s 149). The maximum for an owners corporation managing agent claim is $50,000 (s 149(3)). The fund is the only property available for satisfaction of such claims (s 158).

Review of decisions: Many decisions are reviewable by the ACAT, including refusal to issue or renew a licence or registration, imposition of conditions, refusal to exempt, appointment of an administrator, and decisions on compensation claims (sch 1).

The Act is part of the ACT’s “fair trading legislation” as defined in the Fair Trading (Australian Consumer Law) Act 1992 (s 7). This means the Act is subject to the administration and enforcement provisions of that Act, including the commissioner’s investigative powers and complaint handling (see note to s 7). The Act also notes that under the Fair Trading (Australian Consumer Law) Act 1992 s 33, the commissioner may receive and investigate complaints about the supply of goods and services or acquisition of interests in land (note before s 40).

The Criminal Code ch 2 applies to all offences against the Act, setting out general principles of criminal responsibility, burdens of proof, and definitions such as intention, recklessness, and strict liability (s 5). The Legislation Act 2001 provides definitions and interpretive rules, including the meaning of penalty units, public notice, and service of documents.

The Act interacts specifically with the Civil Law (Sale of Residential Property) Act 2003. The term “residential property” in ss 89A and 89B is defined by reference to that Act (s 89A(7)), and the “required documents” that must be made available for inspection are those listed in s 9 of that Act (s 89A(7)). The Act also limits what agents and assistant property agents may do in relation to contracts for sale of residential property: they may insert basic details and delete descriptions of furnishings but must not insert special conditions (s 89B). If a lawyer is acting for a party, the agent must not exchange contracts unless authorised (s 89B(4)).

The Act displaces the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) in relation to administrators appointed under Part 9. Section 175 declares that an administrator is an “excluded matter” for the purposes of Corporations Act s 5F, and that Part 9 is a “Corporations legislation displacement provision” under s 5G. This ensures that Commonwealth corporations law does not apply to the appointment and functions of administrators under this Act.

The Unit Titles (Management) Act 2011 is relevant: agents acting as owners corporation managers must comply with this Act (see ss 8(2)(f), 43(2)(b), 109A). The Act also references the Unclaimed Money Act 1950 in relation to money paid to the public trustee and guardian (note to s 124).

The Spent Convictions Act 2000 applies: a conviction does not include a spent conviction for the purposes of disqualification provisions (notes to ss 27, 51). The ACT Civil and Administrative Tribunal Act 2008 governs review and occupational discipline proceedings.

The Act also contemplates interaction with corresponding laws of other States (s 174). A person disqualified under a corresponding law is also disqualified under this Act (ss 27(1)(i), 51(1)(h)). The commissioner may share information with regulatory officers under other laws (s 164).

The Leases (Commercial and Retail) Act 2001 part 7 (bonds and guarantees) provides that money received as bond is not trust money for this Act (s 102(2)).

The Act was originally enacted as A2003-20, notified 19 May 2003, with the bulk of provisions commencing 1 November 2003. It has been amended by numerous acts. Key amendments include:

• Civil Law (Sale of Residential Property) Act 2003 (A2003-40): inserted ss 89A and 89B regarding proposed contracts and contract formalities for residential property, effective 1 July 2004.
• Justice and Community Safety Legislation Amendment Act 2004 (A2004-18): amended s 86 and s 87 regarding beneficial interests.
• Justice and Community Safety Legislation Amendment Act 2005 (A2005-11): amended eligibility and disqualification provisions.
• Statute Law Amendment Act 2007 (A2007-3): substituted s 7 definition of fair trading legislation.
• Regulatory Services Legislation Amendment Act 2008 (A2008-5): amended disqualification and application provisions; substituted s 139 on appointment of administrators.
• ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (A2008-36): substituted provisions to replace the former Administrative Appeals Tribunal with the ACAT; changed occupational discipline terminology.
• Unit Titles Amendment Act 2008 (No 2) (A2008-45): inserted s 8A (persons not taken to carry on business as real estate agent) and s 109A (change of owners corporation managing agent).
• Fair Trading (Australian Consumer Law) Amendment Act 2010 (A2010-54): updated references to Australian Consumer Law.
• Justice and Community Safety Legislation Amendment Act 2014 (A2014-17): removed travel agent provisions (ss 90-95, div 5.7, sch 2).
• Justice and Community Safety Legislation Amendment Act 2020 (A2020-42): inserted ss 27A (suitability - real estate agents) and 51A (suitability - assistant real estate agents), and definitions of ACT dishonesty offence, non-ACT offence, relevant offence, sexual offence.
• Fair Trading and Other Justice Legislation Amendment Act 2022 (A2022-8): major reform introducing class 1 and class 2 licences (ss 23A, 23B, 68A, 69, 70); redefining assistant property agent registration; amending conduct provisions; inserting s 75A (assistant property agents must not sign agency agreements); adding Part 5A for employment agents; updating dictionary and numerous other sections.
• Justice and Community Safety Legislation Amendment Act 2023 (A2023-13): made transitional provisions for class 1 licences and amended s 21 penalties and s 175.
• Housing and Consumer Affairs Legislation Amendment Act 2024 (A2024-29): removed licensing requirements for employment agents (s 22 omitted, s 12 om, s 98A-98B inserted, dictionary amendments); amended s 6 and others.
• Better Regulation Legislation Amendment Act 2025 (A2025-13): amended record-keeping obligations (ss 127, 128).
• Statute Law Amendment Act 2025 (A2025-29): made miscellaneous amendments including to ss 29, 36, 84, 167, 168, and schedule 1.

The Act has been republished 45 times, reflecting its frequent amendment and the ongoing development of the regulatory framework.

The Act itself does not contain references to any specific court cases or litigation history. However, the Act establishes a comprehensive scheme for administrative review by the ACAT, and many decisions of the commissioner are subject to review (sch 1). The ACAT may hear occupational discipline applications and may make orders to cancel or suspend licences or registrations (ss 43, 67). The Act also provides for civil recovery of compensation from the fund after a failure to account, and the commissioner may require a claimant to begin proceedings (s 153). The Act creates presumptions in evidentiary certificates (s 173) and records (s 129) that may be tested in litigation. The broader regulatory environment suggests that litigation could arise from disputes over commission recovery (s 23, s 100), false or misleading statements (s 169), and consumer compensation claims (Part 10). Because the Act does not name any cases, this deep dive does not invent any. Practitioners should be aware that the ACAT’s decisions on review and occupational discipline are published and may provide guidance on how the Act is applied.

Several provisions contain traps for the unwary.

Advertising intention to apply: Before applying for a licence or registration, the applicant must give public notice (on an ACT government website or in a daily newspaper) of their intention to apply, stating the kind and class of licence (ss 28, 52). The application must be made within 10 business days after publication, and the commissioner may not accept an application without that notice (s 29(1), 53(1)). Failure to comply may invalidate the application.

Police certificate timing: The required police certificate must be dated not earlier than 2 months before the application is made (s 29(3)(b), 53(3)). If the certificate is older, the application may be refused or delayed.

Objections: Any person may object to the issue of a licence or registration within 10 business days after the public notice, and the objector must serve a copy on the applicant (ss 30, 54). The commissioner may only consider the objection if satisfied that the objector complied with the service requirement (ss 30(5), 54(5)). Failure to give the applicant a copy makes the objection ineffective.

Strict liability: Most offences under the Act are strict liability, meaning no proof of fault is required. This includes the requirement to be licensed or registered, to have a class 1 agent in charge, to keep records, to notify failures to account, and many others. Defences such as mistake of fact may be available under the Criminal Code, but the burden shifts.

Unlicensed cannot recover fees: A person who provides an agent service without a licence is not entitled to bring a proceeding to recover commission, fee or reward (s 23). Similarly, an assistant property agent who is not registered cannot recover salary or commission (s 48). This applies even if no conviction is recorded.

Assistant property agents cannot sign agency agreements: Section 75A makes it an offence (100 penalty units) for a registered assistant property agent to sign an agency agreement. Only licensed agents may sign.

Assistant property agents cannot withdraw trust money: Section 107A prohibits an assistant property agent from withdrawing money from a trust account. The term “withdraw money” includes signing a cheque on the account (s 141(4)). This is a strict liability offence with 100 penalty units.

Commission sharing agreements must be in writing: Section 73 requires that any agreement between licensed agents to share commission be in writing, signed by each agent, and contain prescribed terms. Oral agreements are unenforceable, and entering into an unenforceable agreement is an offence (s 73(4)).

Agency agreements must be given to principal within 48 hours: Under s 100(1)(d), the agent must give a copy of the signed agency agreement to the principal within 48 hours after the principal signs. Failure to do so means the agent is not entitled to commission or expenses, unless a court orders otherwise on limited grounds (inadvertent or beyond control, fair and reasonable, unjust to refuse) (s 100(2)-(3)).

No insertion of special conditions in residential property contracts: Section 89B(2) makes it an offence (10 penalty units) for an agent or assistant property agent to insert a special condition into a proposed contract for sale of residential property. This is a strict liability offence.

Disclosure of beneficial interests: Agents and assistant property agents are prohibited from obtaining a beneficial interest in land they are selling, unless they obtain the seller’s written agreement after full disclosure and either no commission is paid or the seller agrees in writing to commission before contract (ss 86, 87). The definition of “obtains a beneficial interest” is broad and includes family members, corporations, trusts, and partnerships (s 82). A failure to comply is an indictable offence with up to 2 years imprisonment.

Failure to account notification: A licensed agent who finds out about a failure to account by an employee must tell the commissioner within 5 business days (s 74). This is strict liability. “Employee” includes contractors (s 74(3)).

Trust account overdrawn: An agent must notify the commissioner within 5 business days of discovering a trust account is overdrawn, with details and reasons (s 108). Strict liability.

Lending licence certificate: Lending or letting someone use a licence or registration certificate is an offence, and a conviction automatically cancels the licence or registration (ss 97, 98).

False or misleading statements: Section 169 makes it an offence to make a false or misleading statement in relation to applications, objections, renewal, notifications, trust account matters, and compensation claims. The offence includes both knowing and reckless conduct. An alternative verdict provision allows a trier of fact to find a person guilty of the lesser reckless offence if not satisfied of the knowing offence (s 170).

Auctioneers: While land auctioneers must be licensed (s 21), note that s 21 was reinstated in 2022 after being omitted in 2014. The offence is strict liability and carries 100 penalty units.

Transitional provisions: The Act has had several transitional parts (e.g., pt 22 expired 30 June 2025) that may have affected rights or obligations. Practitioners should check whether any transitional provisions apply to their situation.

Compliance with the Agents Act 2003 requires a systematic approach covering licensing, registration, conduct, trust accounts, records, and agency agreements.

Obtaining a licence or registration:

1. Determine the appropriate kind (real estate, stock and station, business agent, land auctioneer) and class (class 1 or class 2) of licence or assistant registration.
2. Ensure the applicant meets eligibility criteria: adult, holds prescribed qualifications and experience, not disqualified (ss 24, 49). The commissioner may declare qualifications by disallowable instrument (ss 25, 50). For real estate agents and assistant real estate agents, the commissioner must consider suitability if the person has a relevant offence (ss 27A, 51A).
3. Publish public notice of intention to apply in an ACT government website or daily newspaper, stating the kind and class (ss 28(1), 52(1)).
4. Submit the application within 10 business days after publication, accompanied by a statement of main place of business (for licence) and a police certificate for each applicant, partner, and director (for corporation) dated within 2 months (ss 29, 53).
5. Respond to any objections received within the 10-business-day objection period.
6. Comply with requests for further information (ss 31, 55). The commissioner has 12 weeks to decide (ss 33, 57).
7. Once granted, the licence certificate must not be lent (ss 97, 98).

Conducting business:

• Ensure each place of business has a class 1 licensed property agent responsible for day-to-day management (ss 68A-70). Apply for exemptions if needed under s 71.
• Enter into written agency agreements that comply with s 100: must be signed by principal and agent, identify all rebates/discounts/commissions/expenses and estimate amounts, comply with regulations, and a copy given to principal within 48 hours.
• Disclose pre-contract information to buyers and sellers before contract (ss 84, 85). Obtain written acknowledgments.
• Do not act for both buyer and seller at the same time (s 77).
• Do not obtain a beneficial interest in land being sold without full disclosure and written consent (ss 86, 87).
• Do not make false or misleading statements about selling price estimates (s 88). Keep evidence to support estimates (s 89).
• For residential property, ensure required documents are available for inspection (s 89A) and do not insert special conditions (s 89B).
• Comply with rules of conduct prescribed by regulation (s 171).

Trust accounts:

• Open a trust account at an ACT branch of an ADI in the name including “trust account” (s 105).
• Notify the commissioner of account details within 7 business days of becoming a licensee or opening a new account (s 105(4)-(5)).
• Pay all trust money into the trust account by the next ADI business day (s 107(2)).
• Disburse only by electronic transfer or crossed cheque (s 107(4)).
• Do not overdraw (s 108).
• Keep records and have the trust account audited by a qualified auditor within 3 months after the end of the audit period (s 115).
• Prepare quarterly statements and give them to the auditor (s 111).
• Report monthly to the commissioner about unclaimed trust money (ss 119-124).

Records:

• Record material details of every transaction (s 127).
• Keep records for 5 years from 30 September after making them (s 127(5)).
• Keep records at the main place of business or electronically accessible there, unless the commissioner agrees otherwise (s 128).
• Give receipts for trust money (s 130).

Notification obligations:

• Notify the commissioner of any change of main place of business within the prescribed period (s 68(2)).
• Notify the commissioner of any failure to account by an employee within 5 business days (s 74).
• Employees must notify their employer if they become disqualified (s 76).

Renewal:

• Apply for renewal before expiry; the licence continues until the application is decided (s 37). Renewal applications must be made within 3 months after expiry to maintain continuity (s 37(3)).
• Ensure continuing eligibility and compliance with any renewal requirements (s 36).

Dealing with disputes:

• Reviewable decisions may be appealed to the ACAT within applicable time limits (sch 1, s 168).
• Claims for compensation from the fund must be made within 1 year of becoming aware of the failure to account or 2 years after the failure, whichever ends earlier, unless a public notice extends the period (s 151).

By systematically addressing each of these areas, a licensed agent or assistant property agent can achieve and maintain compliance with the Act.