The Certainty of Law
By Bailey Compton 15 Dec 2023
The law is meant to be accessible! For a society to operate, we should all be able to understand what our rights and obligations are. Government has now put us in a position where we have no idea and it is impossible for us to fulfill all the requirements.
As a registered training organisation, we are required to a comply with the national Vocational Education Training (VET) standards. On one hand, we are required to ensure that a person is competent in a particular unit of study. On the other hand, we are required to provide all assistance to get a person through a course. RTA is adjudicated on its completion rate, not its failure rate. On one hand, we will be judged if we give too much assistance. And on the other hand, we’re punished if we don’t give any. Where is the medium?
Let’s have a look at a rule which relates to real estate agents. Section 52 of the Property and Stock Agents Act 2002, an agent is required to disclose material facts. On the other hand, a number of rules in the rules of conduct provide that the agent must fulfill his fiduciary duty. The provision is for you to act in the clients’ best interests. Additional to this, the agent has a duty of care to both the vendor and the purchaser.
If an agent discloses all facts relevant to a purchase, they are not necessarily acting in the client’s best interests. The agent is providing information regarding the vendor which may be a breach of privacy. On the other hand, if it’s not disclosed, the agent is in breach of the material facts provision as set out in Section 52. So agents are left in a very difficult situation of having to determine how much they need to disclose.
In the murder house case of 2003, we had a discussion with the then enforcement manager of the Office of Fair Trading. I was able to demonstrate to him that LJ Hooker North Ryde was damned if they did and damned if they didn’t. if they did disclose it was a murder house, they breached the fiduciary duty to their vendor. If they didn’t, they would breach the material fact requirement.
Throughout the legal system, this problem is present. More and more, legislation are being drafted where conflicts in principle are leaving businesspeople and professionals in a position where we have no idea where our duty begins and where it ends. It is becoming increasingly difficult to conduct a business and provide policy and procedures to both protect the organization as well as your customers.
Professor Robert Eagleson said in his various books on “Legislation in Plain English”, society is going backwards where the law is not accessible. He defined accessibility as one knowing what they need to do and not do. Obviously, the professor’s teachings are considered as ancient history. If you want a better society, people need to know what to do!