Settlement agents in Western Australia: licences, fees and safeguards

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Kooky

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In Western Australia, the person who carries a property sale from signed contract to settlement day does the work known elsewhere as conveyancing. The law here calls that person a settlement agent, and gives the occupation its own statute, the Settlement Agents Act 1981. The Act's long title says what it is for: the licensing, regulation and supervision of settlement agents.

The question this guide answers is a practical one for buyers, sellers and people entering the trade: what a settlement agent in Western Australia is allowed to do, what stands behind the licence, and where the work stops and a lawyer's begins. It covers the two kinds of licence, the triennial certificate that keeps a licence alive, the end of the maximum fee scale in 2016 and the disclosure rule that replaced it, trust accounts, insurance and the Fidelity Guarantee Account, continuing professional development and discipline. It draws on the Act as published on the Western Australian legislation website, on the state government's licensing guide, last updated on 4 August 2026, and on publications of Consumer Protection, the state's regulator for the industry. The Act was read in the version shown as in force on that website, numbered 07-k0-00 and current from 1 July 2022, and the penalty amounts below are those of that version.

Settlement Agents Act 1981 (WA), sections 31, 35 and 26, version 07-k0-00, in force from 1 July 2022.

What the law means by a settlement agent

Section 3 of the Settlement Agents Act 1981 builds the definition in layers. A settlement, in the Act's words, is the completion of a real estate or business transaction by payment of the balance of the purchase price. A real estate settlement agent is a person who arranges or effects the settlement of a real estate transaction for reward, or who carries on that business whether or not for reward. A business settlement agent is the equivalent for business transactions. A settlement agent is a person who is one, the other, or both.

The definition matters because of what section 26 attaches to it. A person must not carry on business as a settlement agent, or hold out as one, unless that person is licensed and holds a current triennial certificate. The Act sets the penalty at a fine of A$100,000. Both parts of the test count: the licence alone is not enough, and the certificate cannot exist without the licence.

The state government's licensing guide puts the same rule from the customer's side. There are two ways to arrange settlements in Western Australia, it says. One is to hold a current triennial certificate granted by Consumer Protection. The other is to be a certified legal practitioner under the Legal Profession Uniform Law Application Act 2022. The Act mirrors this at section 4, which takes legal practitioners acting in the course of their practice out of the definition of settlement agent altogether.

Two narrower exemptions sit at sections 26A and 26B. As the Act describes them, they concern licensed real estate agents and licensed business agents, and are limited to settlements of their own transactions carried out without reward. They do not turn an estate agent into a settlement agent for the public.

Two licences for two kinds of transaction

The Act separates property from businesses, and a licensee may hold one authority or both. The difference is not a matter of prestige but of subject matter, and sections 46 and 47 draw the boundary from each side.

A real estate settlement agent may perform the functions listed for that licence in Schedule 2 of the Act and may draw the documents the Schedule names. Section 46(2) then lists what falls outside: the settlement of leasehold land, with exceptions the Act sets out; land used for a business other than one that is wholly farming; and mining tenements.

A business settlement agent may perform the Schedule 2 functions listed for that licence. Section 47(2) excludes transactions that involve real estate other than leasehold, and mining tenements. Consumer Protection's publication on business settlement agents, last updated on 21 November 2024, defines a business transaction as the sale or exchange of a business, of a share or interest in a business, or of its goodwill within the state, together with related goods, chattels or other property. It excludes the sale or purchase of a share in a body corporate.

The two lists fit together. Land sold with a shop or a café trading on it is not a matter for a real estate licence alone, because section 46(2) takes land used for a non-farming business out of it, while section 47(2) keeps freehold land out of the business licence. How a sale that mixes the two is handled depends on the transaction and on the exceptions the Act sets out.

What the work consists of

Consumer Protection's publication gives the fullest plain-language list of tasks, for the business licence. A business settlement agent may search and inquire at government and statutory offices about the records, registers, plans and policies that relate to the business. The agent may make inquiries about long service leave and holiday pay, rent, leased plant or equipment, rates, taxes and other periodic outgoings: the items that are adjusted between seller and buyer on the day.

The same list allows the agent to arrange the employment of a stock taker, to arrange the transfer of the facilities and services supplied to the business, and to arrange the payment of duty under the Duties Act 2008 and of other imposts or fees on documents. The agent may arrange and attend settlement, which includes exchanging documents and receiving and disbursing money, and may lodge documents for registration at government or statutory offices. One drafting task is named: preparing and arranging the execution of applications under the Commonwealth's Business Names Registration Act 2011 to transfer a business name, subject to conditions in the code of conduct.

For the real estate licence, the Act's own structure gives the outline: Schedule 2 lists the functions and the documents that may be drawn, and section 46 sets the limits described above. The detailed wording of Schedule 2 was not available in the copy of the Act read for this guide, so the list of real estate functions is not reproduced here.

What both licences share is a list, and that is the point. A settlement agent's authority is the set of functions the Act names, not a general right to act in property matters.

Who can hold a licence

Section 27 of the Act sets the tests for an individual. The applicant must be at least 18, of good character and repute, a fit and proper person, in possession of sufficient material and financial resources, ordinarily resident in the state, and must understand the duties the Act imposes. Being fit and proper includes holding the qualifications set out in Schedule 1.

The licensing guide's page for new applications, last updated on 24 April 2026, names the qualification in practice: the Advanced Diploma of Conveyancing, course code BSB60220, or a current practising certificate for a legal practitioner. The older Diploma of Conveyancing, BSB52015, was accepted only for applications lodged on or before 31 December 2024. Since 1 January 2025 only the Advanced Diploma is accepted.

The same page lists what goes in with the form. Each person supplies two business references on the regulator's pro forma, at least one of them from someone outside the applicant's current workplace; references from relatives, domestic partners, subordinates, business partners or co-directors generally are not accepted. Each person supplies a police check dated within the past three months. A current certificate of professional indemnity and fidelity insurance under the Master Policy is attached where it applies. The page says applications are granted within four to six weeks.

Businesses are licensed in their own right. The licensing guide says firms and companies set up as settlement agencies need a separate partnership licence or body corporate licence. Under section 28, every member of a firm must be of good character and repute, the firm must have sufficient resources, one or two members must be licensed depending on the firm's size, and the person in bona fide control of the business must be licensed and ordinarily resident in the state. Section 29 applies similar tests to the directors and management of a body corporate.

The requirement is continuous. A body corporate that no longer has the required number of licensed directors, or a licensed person in bona fide control, must surrender its licence and triennial certificate within five days, according to the licensing guide. Where the gap is caused by a death or a withdrawal, the licensee notifies the Commissioner and may operate for up to three months, after which the licence must be surrendered if the company is still not qualified. The guide adds that agents licensed in another Australian state or in New Zealand may apply under mutual recognition or automatic mutual recognition.

The triennial certificate

The licence says a person is fit to be a settlement agent. The triennial certificate says that person may trade now. Section 3 defines it as a certificate granted to a licensee to carry on business as a settlement agent, and section 31 gives it a life of three years from the day it is granted.

Renewal is by application and prescribed fee, and it is not automatic: under section 31 the Commissioner must again be satisfied of the matters in sections 27 to 29. The renewal page of the licensing guide asks for the application at least four weeks before the expiry date, with a fresh police check dated within three months and, where it applies, the current insurance certificate. Reminders are sent by email as a courtesy.

A licensee who does not wish to trade has a second path. The licensing guide describes a holding fee, paid within 60 days after the certificate expires and every three years after that, which keeps the licence in existence without a certificate. Section 30 of the Act explains why it matters: a licensee without a current certificate cannot carry on business, and the licence itself ceases if the certificate is not current and the prescribed fee is not paid.

The Act and the licensing guide do not use the same outer limit, and the regulations explain why. Section 32 of the Act lets a certificate be renewed within one month with effect from the day after expiry, and after one month but within 12 months with the same backdating where the Commissioner is satisfied there is reasonable cause, or otherwise from the day the renewal is granted. After 12 months section 33 applies, and a renewal runs from the day it is granted. Section 30, however, ends the licence itself where no certificate is current and the prescribed fee has not been paid in accordance with the regulations. Regulation 4A of the Settlement Agents Regulations 1982, in the version current from 1 July 2026, makes that holding fee payable on or before the day that is 60 days after the licensee ceases to hold a current certificate. Read together, the 12-month window of section 32 is open to a licensee who paid the holding fee within 60 days; without that payment there is no licence left to renew, which is the 60-day rule the guide applies.

A worked example shows the 60-day rule on a calendar. Assume a certificate expired on 30 June 2026 and the licence was not placed on hold. An application lodged by 30 July 2026 is within one month, and the new period starts on 1 July 2026. An application lodged after that and by 29 August 2026, the sixtieth day, starts either on the date it is granted or, with reasonable cause, on 1 July 2026. From 30 August 2026 the guide treats the licence as ceased.

Money paid for a certificate is partly recoverable in defined cases. The licensing guide says a licensee who surrenders voluntarily may ask for one-third of the fee, not counting the fidelity contribution, for each remaining year of the term. Nothing is refunded where the State Administrative Tribunal or a court cancels the licence. Holding fees are refunded in part if the licensee later renews: two-thirds if within one year, one-third if after one year but within two. As a worked example with an assumed fee, not the prescribed one: on a certificate fee of A$900, surrender with two full years left would return two-thirds, A$600; on an assumed holding fee of A$300, renewal within a year would return A$200 and renewal in the second year A$100.

Fees: the maximum scale ended in 2016

Western Australia used to cap what settlement agents could charge. Section 44 of the Act still carries the power: the Commissioner, with the Minister's approval, may fix maximum remuneration by notice in the Gazette, and a licensee may not receive more than an amount so fixed. But no scale has applied since early 2016. Consumer Protection's settlement agents bulletin of 25 January 2016 announced that fee regulation would end on Wednesday 3 February 2016, following consultation with the industry in 2014, and that the scale of maximum fees would be removed. From that date each agent sets the fee for a transaction.

What replaced the cap is a written costs disclosure. According to the bulletin, the agent must state the maximum amount to be charged for the agent's services, and that maximum must include all fees, commissions and charges and the general office disbursements for the transaction: phone calls, photocopying, postage, courier fees, stationery. The bulletin noted that this differed from the practice of the time, in which disbursements were billed separately. The fee an electronic settlement platform charges per completed transaction is to be included as well. The format, and whether to itemise, is left to the agent.

Some costs sit outside the disclosed maximum because the agent does not set them. The bulletin lists duty under the Duties Act 2008; other taxes, duties, fees, levies or charges under written law, with Landgate searches as its example; fees payable to financial institutions; and commissions chargeable by an agent, developer or other third party. The regulator encouraged agents to outline these likely charges all the same.

The third step has four conditions, and the bulletin requires all of them. There must be an unforeseen significant change in the scope of the work. The agent must inform the client in writing. The client must agree to the service continuing. And the additional amount must be reasonable given the change.

The bulletin said the disclosure rule would be written into the Settlement Agents' Code of Conduct 1982. Consumer Protection's later publication refers to the Settlement Agents Code of Conduct 2016 as the code now in force. Neither page read for this guide gives the clause number.

The written appointment and acting for both sides

Two further rules shape the relationship with the client. The first is section 43 of the Act: an appointment must be in writing and signed before services are rendered. An agent who takes a reward without one commits an offence, with a penalty of A$5,000. The disclosure described above is given before this appointment form is signed, so a client sees the price before the commitment.

The second concerns acting for both sides: one settlement agent may act for buyer and seller. Sections 46(3) and 47(3) permit it only where each party acknowledges in writing that they are aware of it and gives prior consent. Without both, the agent acts for one side.

Section 44 also deals with money passing around the transaction: the Act prohibits referral fees at subsections (7) and (8).

Client money and trust accounts

Purchase money passes through the agent, and the Act treats it accordingly. Under section 49, money received for other people must be paid into a trust account as soon as practicable. It may be withdrawn only for the completion of the transaction, in accordance with the contract, under legal authority, or with the written consent of all the parties. Entries in the records are due before the end of the next business day.

The accounts are audited every year, and section 51 requires the auditor's report within three months after the end of the year. The penalties in section 65 are the heaviest that attach to day-to-day practice: A$25,000 or two years' imprisonment for breaching the withdrawal rules.

Interest follows two routes. Where a separate interest-bearing account is opened for a client, section 49A sends the interest to the client. On the general trust account, section 49B requires the authorised institution holding it to pay interest on the balances, at a prescribed rate, into the Settlement Agents Interest Account; an institution that fails to do so faces a penalty of A$50,000 under section 65.

Insurance and the Fidelity Guarantee Account

Two separate protections stand behind a settlement, and they answer different risks.

The first is insurance. Section 35 allows the Commissioner to arrange fidelity and professional indemnity insurance for the industry under a Master Policy Agreement, sets the minimum cover at A$250,000 for each claim, and bars the grant or renewal of a triennial certificate to an applicant who is not insured. The licensing guide says who must hold it: each certificate holder trading in their own right, and each one acting as the person in bona fide control or as branch manager of a licensed agency.

The second is the Settlement Agents Fidelity Guarantee Account, established by section 87 and administered by the chief executive officer of the department. Section 88 says what it is made of: contributions and levies from agents, investment income, certain transfers and recovered money. The licensing guide describes its use: the account can reimburse people who lose money or property through the criminal or fraudulent actions of a licensed agent, or of the agent's employees, during a settlement transaction.

Agents fund it directly. A contribution of A$150, or another sum approved by the chief executive officer, is payable with a licence application or a triennial certificate renewal, and is refunded if the application is not granted. Over one three-year certificate that is A$50 a year.

The pages read for this guide do not give the time limit for a claim on the account or any ceiling on what it pays. Those points are in the later sections of the Act and are open here.

Professional development and discipline

Holding the licence carries a yearly obligation. Consumer Protection's publication on licensed activities lists six compulsory professional development points a year among the conditions of keeping a licence, next to the statutory trust account and the three-yearly renewal. The licensing guide describes continuing professional development as mandatory for property professionals and says the requirements are published by Consumer Protection. Section 41B of the Act carries a penalty of A$5,000 for failing to comply with educational requirements.

The code of conduct is made under section 82, and section 34 makes compliance with it a condition of every licence. Enforcement runs through the State Administrative Tribunal. Under section 83 the Commissioner may allege before the Tribunal that there is proper cause for disciplinary action, and may do so up to 12 months after a licence has been surrendered or has lapsed. Section 84 gives the Tribunal a graded set of responses: a reprimand or caution, a fine of up to A$10,000, suspension, or cancellation with disqualification.

Some outcomes are automatic. Section 85 cancels a licence on conviction for defalcation, for fraudulent accounts or for a breach of the trust account provisions. And section 74 lets the Tribunal, on the Commissioner's application, suspend an agent, restrain dealings in the agent's bank accounts and authorise the appointment of a supervisor, where it is satisfied there are reasonable grounds to believe the agent is incapable of properly conducting the business or is not conducting it in accordance with the Act.

How a settlement agent differs from a lawyer

Both can carry a sale to settlement in Western Australia; the licensing guide lists them as the two routes. The difference lies in what else each may do.

A settlement agent works inside the list of functions in Schedule 2, for the kinds of transaction sections 46 and 47 allow. Both sections say in terms that the agent may not give advice on a matter of law. A legal practitioner acting in the course of practice is outside the Act under section 4, and so is not confined to that list or to those kinds of transaction. Leasehold land, mining tenements and land with a non-farming business on it are the examples the Act itself gives of work that a real estate settlement agent's licence does not reach.

The safeguards differ too. The trust account rules, the Master Policy, the Fidelity Guarantee Account and the Tribunal's disciplinary powers described here are those of the Settlement Agents Act 1981 and apply to licensed settlement agents. A legal practitioner answers to the legal profession's own legislation, which this guide does not cover.

The entry route overlaps at one point. A legal practitioner's current practising certificate is accepted in place of the Advanced Diploma of Conveyancing when applying for a settlement agent's licence, so a person may be qualified for both.

A settlement agent's licence is a list of permitted tasks. Advice on what the law means for one party is not on it.

Kooky, from Shaka

Kooky edits Agents Estate and builds Shaka, the payment router he made for real estate professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

About Kooky and Shaka →