Hon Christopher Finlayson

Part 4 Complaints and discipline

CHRISTOPHER FINLAYSON (National) : Part 4 is almost the heart of the legislation, because the Minister’s yelling and screaming before the bill was introduced indicated he was concerned that there was an inadequate complaints procedure under the 1976 Act. We agree that it was timely to look at the complaints and discipline procedure, because any system that regulates a profession or an industry group needs to be effective so that disputes can be resolved justly, quickly, and inexpensively.

The problem, from the National Party’s point of view, is that Part 4 will not achieve that purpose. Rather, it will cause added expense. Also, what has been constructed is not really suitable for the particular circumstances. That is why we put in our minority view that we were very concerned about the bureaucracy created by this bill. We have mentioned the authority on the way through, but we say here that an unnecessary bureaucracy is created.

Let us take a look at the way this part is constructed. There are two types of conduct that can lead to complaints. The first type is unsatisfactory conduct, which is of the lesser standard, and the second type is misconduct. We have no complaint with that division of labour, as it were. If one looks at the Lawyers and Conveyancers Act, one sees there is a very similar distinction to be made. Instances of unsatisfactory conduct are referred to complaints assessment committees, and, as the Committee can see, a number of changes have been made to the way in which the complaints assessment committees are set up. The existing clause 74 is proposed to be deleted, and there is a new clause 74 and a clause 74A.

There will be a complaints assessment committee that will deal with complaints and allegations about licensees. There will also be a panel. The reason for that is we received evidence about the number of complaints made, and it became tolerably clear at an early stage that simply to have three members of the board as members of a complaints assessment committee would not work. This is where we say that this is too complex, because this bill does not adequately address what to do with the myriad of vexatious complaints that come in. These are the sorts of complaints that should be able to be dealt with very quickly, or what may start off as a complaint may be able to be resolved very quickly if the agent and the client have a quick discussion. There may have been a misunderstanding, or whatever. But in the way it is constructed it almost encourages a culture of complaint, and we do not think this is proportionate to the needs of the consumers. If there could be a provision that provided for, in the first instance, people being able to talk to their agent, if they thought fit, we think that would be a much better system. Sometimes, of course, the relationship between the client and the agent is so bad that one immediately goes to this complaints procedure, and that is understood and accepted.

That is the first aspect of the complaints procedure. I do not think it is a bad idea to have something like clause 84 in the bill. It deals with modes of resolution of disputes, and it has been picked up from the Lawyers and Conveyancers Act. It will be possible to resolve matters by negotiation, conciliation, and mediation. I certainly hope this clause will be invoked if the legislation is passed, because that is a much better way of resolving a dispute between the client and the agent than simply going to this more formal complaints procedure. I note it is not compulsory. At some stage we will have to debate the desirability of having compulsory mediation, because it is certainly the case in Australia in various tribunals, and I think there is a lot to commend it in this country as well.

The second tribunal I am not so worried about. This is the Real Estate Agents Disciplinary Tribunal set up under clause 97 and the following clauses. There will need to be a tribunal of this nature to deal with the serious complaints. These are complaints about misconduct.