Fair Trading No Longer Queensland's Neglected Orphan?
by Tim O'Dwyer M.A., LL.B
Once, when Queensland’s Premier Peter Beattie was planning a ministerial reshuffle, I offered him this advice: the Fair Trading portfolio, because of its appalling real estate regulation record, should be handled by his Attorney-General - or another legally-qualified minister.
Beattie’s Chief of Staff replied: “The Premier does not consider it essential that Ministers have formal qualifications in the areas of their portfolio responsibilities. While there may be advantages in some instances, there are also disadvantages, including the risk of identifying too closely with sectional views”.
I was assured, but not convinced, that legally-qualified staff members provided their Minister with “independent and quality advice.”
Two years and a new Premier later, things are changing. One of Premier Anna Bligh’s first moves was to pass Fair Trading to Attorney-General (and former solicitor) Kerry Shine. You could have knocked me over with one of the Property Agents and Motor Dealers Act’s 502 pages.
Shine welcomed the “additional responsibility” entrusted to him, and to consequent “opportunities and challenges”. “I believe Fair Trading is a natural fit within the Attorney-General & Justice portfolio”, he said.
Fair Trading (or Consumer Affairs as it was once styled) has often been an orphan looking for a suitable home and ministerial master. During the Bjelke-Petersen years it resided within the Justice Department. In 1989 Consumer Affairs became part of Justice and Corrective Services under the Goss Labor Government’s Glen Milner.
From 1992 to 1993 Milner lost Justice but retained Consumer Affairs and Corrective Services. Then Consumer Affairs was tacked onto the Deputy Premier’s Emergency Services and Rural Communities Departments. From July 1995 to December 1995 Emergency Services and Consumer Affairs had another Minister before going to yet another Minister until February 1996.
During the two years of the subsequent Borbidge Coalition Government Consumer Affairs returned to Justice - and Attorney-General’s. In 1998, with the advent of the Beattie Labor Government, Consumer Affairs became Equity and Fair Trading under Judy Spence, also Minister for Women’s Policy and Aboriginal & Torres Strait Islander Policy. From 2001 to 2004 the since-disgraced Merri Rose was Minister for Tourism, Racing and Fair Trading. Somehow Equity and Fair Trading morphed into the Office of Fair Trading. Margaret Keech then presided over Tourism, Fair Trading and Wine Industry Development until the new Premier relieved her of Fair Trading.
Did Premier-in-waiting Bligh observe with alarm Fair Trading’s abysmal performance under Ministers Spence, Rose and (particularly) Keech? Consider these concerns:
- The Ombudsman’s major investigation into Fair Trading’s handling of two-tier marketeering complaints identified serious deficiencies in investigative processes and “maladministration”.
- No prosecutions resulted when Keechie’s husband (with incomplete training and no salesmen’s registration) was spruiked by his estate agency employer as its “land sales marketing specialist”.
- While Queensland agents are permitted to prepare and manage the signing of contracts, Fair Trading gives not a fig about inadequate/incompetent/unconscionable contract preparation.
- No action has been taken to ensure “fundamentally flawed” standard real estate contracts are fair to consumers.
- Fair Trading gave a consumer protection award to the Real Estate Institute of Queensland which Keechie counted among “Queensland’s best consumer advocates”.
- Despite ministerial promises Queensland’s mortgage brokers remain unregulated.
- Auction skulduggery is alive and well in the Deep North, with vendor bids still allowed.
- Over-priced property marketeering continues to thrive with few successful prosecutions of the marketers, agents, solicitors and others involved.
- Courts and Tribunals have criticised the drafting of the much-amended Property Agents and Motor Dealers Act. One judge described a consumer-protective form as “intimidating”.
- Consumer-friendly disclosure laws, despite working well elsewhere, are not on Fair Trading’s radar.
- Agents are permitted to recommend tame solicitors, pet building inspectors and kickback-paying mortgage brokers to trusting buyers.
- While residential buyers must be given written warnings to seek independent pre-contract legal advice, sellers get no such warnings.
- Keechie has told buyers “to educate themselves” because they rely too much on agents to educate them about the market and their rights.
- The public can view the Register of (rogues’) Enforceable Undertakings, not on-line, but only at Fair Trading’s Brisbane office.
Around the time my advice was rejected, a Liberal Party leader more pointedly blamed Fair Trading’s failings on Beattie’s insistence on giving Fair Trading to junior ministers. Fair Trading been found wanting – and Keechie was “not the Minister to fix it.” This department, he said, needed strong leadership and direction.
Premier Bligh has now recognised this by putting the Attorney-General in charge of the Konsumer Kops. I am quietly hopeful.
Lawyers Conveyancing is proud to sponsor the REIC