{"id":"misrepresentation-act-1972","name":"Misrepresentation Act 1972","slug":"misrepresentation-act-1972","collection":"act","jurisdiction":"sa","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":105974,"registerId":"sa-misrepresentation-act-1972-current","compilationNumber":null,"startDate":"2026-04-03","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Misrepresentation Act 1972","content":"South Australia\nMisrepresentation Act 1972\nAn Act to provide criminal sanctions against misrepresentation in certain commercial transactions; to expand the remedies available at common law and in equity for misrepresentation; and for other purposes.\n\nContents\nPart 1—Preliminary\n1\tShort title\nPart 2—Criminal sanctions against misrepresentation in certain commercial transactions\n4\tMisrepresentation made in the course of trade or business\nPart 3—Expansion of remedies available at common law and in equity for misrepresentation\n5\tInterpretation\n6\tRemoval of certain bars to rescission\n7\tDamages for misrepresentation\n8\tExclusion clauses\n9\tApplication of Part\nLegislative history\n\nThe Parliament of South Australia enacts as follows:\nPart 1—Preliminary\n1—Short title\nThis Act may be cited as the Misrepresentation Act 1972.\nPart 2—Criminal sanctions against misrepresentation in certain commercial transactions\n4—Misrepresentation made in the course of trade or business\n\t(1)\tWhere, in the course of a trade or business, a misrepresentation is made by the person by whom the trade or business is conducted, a person duly authorised to act on his or her behalf, or a person acting in the course of his or her employment—\n\t(a)\tfor the purpose of causing or inducing any other person to enter into a contract; or\n\t(b)\tfor the purpose of causing or inducing any other person to pay any pecuniary amount, or to make over or transfer any real or personal property, to the person by whom the representation is made or any other person,\nthe person by whom the trade or business is conducted, and the person by whom the representation is made, are each guilty of an offence.\nMaximum penalty: \n\t(a)\tin the case of a body corporate—$100 000; or\n\t(b)\tin any other case—$20 000.\n\t(2)\tWhere in any proceedings under this section it is proved that a misrepresentation in fact acted as a material inducement to any person—\n\t(a)\tto enter into a contract; or\n\t(b)\tto pay any pecuniary amount, or to make over or transfer any real or personal property, to the person by whom the representation was made, or any other person,\nand that, in consequence, the person by whom the representation was made, or a person on whose behalf, or in whose employment, that person was acting, derived any direct or indirect consideration or material advantage, it will be presumed, in the absence of proof to the contrary, that the representation was made for the purpose of inducing the person to whom it was made to enter into that contract, to pay that pecuniary amount, or to make over or transfer that real or personal property, as the case may require.\n\t(3)\tIt is a defence to a prosecution under this section—\n\t(a)\tthat the person by whom the representation was made believed upon reasonable grounds that the representation was true; or\n\t(b)\twhere the defendant is not the person by whom the representation was made—\n\t(i)\tthat the defendant took all reasonable precautions to prevent the commission of offences against this section by persons acting on his or her behalf, or in his or her employment; or\n\t(ii)\tthat the defendant did not know, and could not reasonably be expected to have known, that the representation had been made, or that it was untrue.\n\t(4)\tFor the purposes of this section a representation constitutes a misrepresentation if it is false in any material particular.\n\t(6)\tThis section does not affect any civil remedy, or any other statutory sanction or remedy, in respect of a misrepresentation.\n\t(9)\tProceedings for an offence against this section must not be commenced unless the Attorney-General has consented to the commencement of those proceedings.\n\t(10)\tIn any proceedings for an offence against this section, an apparently genuine document purporting to record the consent of the Attorney-General to the commencement of those proceedings will be accepted as proof of that consent in the absence of evidence to the contrary.\nPart 3—Expansion of remedies available at common law and in equity for misrepresentation\n5—Interpretation\nIn this Part—\ncourt includes an arbitrator.\n6—Removal of certain bars to rescission\n\t(1)\tWhere a misrepresentation has been made by reason of which any party to a contract would, but for any one or more of the following considerations—\n\t(a)\tthat the misrepresentation has become a term of the contract; or\n\t(b)\tthat the contract has been performed; or\n\t(c)\tthat conveyances, transfers or other documents have been registered at any public registry office in pursuance of the contract,\nbe entitled to rescind the contract, that contracting party is entitled to rescind the contract despite that consideration or those considerations.\n\t(2)\tThis section does not invest a contracting party with a right to rescind a contract where, in equity, such a right would be barred by reason of the fact that a third party has in good faith and for valuable consideration acquired an interest in the subject-matter of the contract.\n\t(3)\tThis section does not affect any remedy available under the Land Agents Act 1994, Conveyancers Act 1994, Land Valuers Act 1994 or Land and Business (Sale and Conveyancing) Act 1994.\n7—Damages for misrepresentation\n\t(1)\tWhere a contracting party is induced to enter into a contract by a misrepresentation made—\n\t(a)\tby another party to the contract; or\n\t(b)\tby a person acting for, or on behalf of, another party to the contract; or\n\t(c)\tby a person who receives any direct or indirect consideration or material advantage as a result of the formation of the contract,\nand any person (whether or not he or she is the person by whom the misrepresentation was made) would, if the misrepresentation had been made fraudulently, be liable for damages in tort to the contracting party subjected to the misrepresentation in respect of loss suffered by him or her as a result of the formation of the contract, that person is, subject to subsection (2), so liable to that contracting party, in all respects as if the misrepresentation had been made fraudulently and were actionable in tort.\n\t(2)\tIt is a defence to an action under subsection (1)—\n\t(a)\tthat the person by whom the representation was made had reasonable grounds to believe, and did believe, that the representation was true; or\n\t(b)\tthat the defendant was not the person by whom the representation was made and did not know, and could not reasonably be expected to have known, that the representation had been made, or that it was untrue.\n\t(3)\tWhere in any proceedings before a court, it is proved that a party to a contract has rescinded, or is entitled to rescind, the contract on the ground of misrepresentation, the court after consideration of the consequences of rescission, and the consequences of a declaration under this section, in the circumstances of the case, may, if it considers it just and equitable to do so, declare the contract to be subsisting and award such damages as it considers fair and reasonable in view of the misrepresentation.\n\t(4)\tA declaration under subsection (3) has effect according to its terms and is a bar to rescission.\n\t(5)\tWhere a contract has been rescinded but is subsequently declared to be subsisting under subsection (3), the respective rights and liabilities of the contracting parties will be determined in all respects as if the contract had never been rescinded.\n\t(6)\tIn assessing any damages under this section, a court must take into consideration any award of damages under any other provision of this section, or of damages or compensation under any other law, and in assessing damages or compensation in any proceedings under any other law relating to a contract, a court must take into consideration any award of damages under this section.\n8—Exclusion clauses\nIf any contract contains a provision that would, but for this section, exclude or restrict—\n\t(a)\tany liability to which a party to a contract may be subject by reason of any misrepresentation made by that party before the contract was made; or\n\t(b)\tany remedy available to another party to the contract by reason of such a misrepresentation,\nthat provision has no effect except to the extent (if any) to which, in any proceedings arising out of the contract, the court may allow reliance on it as being fair and reasonable in the circumstances of the case.\n9—Application of Part\nThis Part does not apply in relation to a misrepresentation, or a contract, made before the commencement of this Act.\nLegislative history\nNotes\n\t•\tPlease note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.\n\t•\tEarlier versions of this Act (historical versions) are listed at the end of the legislative history.\n\t•\tFor further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au.\nPrincipal Act and amendments\nNew entries appear in bold.\nYear\nNo\nTitle\nAssent\nCommencement\n1972\n46\nMisrepresentation Act 1972\n20.4.1972\n18.5.1972 (Gazette 18.5.1972 p1927)\n1987\n43\nStatutes Amendment (Fair Trading) Act 1987\n30.4.1987\ns 18—26.10.1987 (Gazette 24.9.1987 p940)\n1995\n62\nMisrepresentation (Miscellaneous) Amendment Act 1995\n10.8.1995\n26.9.1996 (Gazette 26.9.1996 p1209)\n2011\n36\nStatutes Amendment (Directors' Liability) Act 2011\n22.9.2011\nPt 12 (s 14)—1.1.2012 (Gazette 15.12.2011 p4988)\nProvisions amended since 3 February 1976\n\t•\tLegislative history prior to 3 February 1976 appears in marginal notes and footnotes included in the consolidation of this Act contained in Volume 7 of The Public General Acts of South Australia 1837-1975 at page 368.\nNew entries appear in bold.\nEntries that relate to provisions that have been deleted appear in italics.\nProvision\nHow varied\nCommencement\nLong title\namended by 62/1995 s 5 (Sch)\n26.9.1996\nPt 1\n\n\nss 2 and 3\ndeleted by 62/1995 s 5 (Sch)\n26.9.1996\nPt 2\n\n\ns 4\n\n\ns 4(1)\namended by 62/1995 ss 3(a), (b), 5 (Sch)\n26.9.1996\ns 4(2) and (3)\namended by 62/1995 s 5 (Sch)\n26.9.1996\ns 4(5)\namended by 62/1995 ss 3(c), (d), 5 (Sch)\n26.9.1996\n\ndeleted by 36/2011 s 14\n1.1.2012\ns 4(7)\ndeleted by 43/1987 s 18\n26.10.1987\ns 4(8)\ndeleted by 62/1995 s 5 (Sch)\n26.9.1996\ns 4(9) and (10)\namended by 62/1995 s 5 (Sch)\n26.9.1996\nPt 3\n\n\ns 6\n\n\ns 6(1)\namended by 62/1995 s 5 (Sch)\n26.9.1996\ns 6(3)\namended by 62/1995 s 4\n26.9.1996\ns 7\n\n\ns 7(1), (2), (4)—(6)\namended by 62/1995 s 5 (Sch)\n26.9.1996\nss 8 and 9\namended by 62/1995 s 5 (Sch)\n26.9.1996\nPt 4\ndeleted by 62/1995 s 5 (Sch)\n26.9.1996\nHistorical versions\nReprint No 1—1.10.1991\n\nReprint No 2—26.9.1996\n\n","sortOrder":0}],"analysis":{"kimi_summary":{"content_quality":"ok","complexity_score":4,"scope_assessment":{"changed":false,"description":"The legislation remains tightly focused on its original dual purpose: criminal sanctions for commercial misrepresentation and expanded civil remedies. The 1995 amendments appear to have been technical/consolidating changes rather than scope expansions. No evidence of significant mission creep beyond the original intent stated in the long title."},"complexity_factors":["Moderate cross-referencing between criminal and civil parts (sections 4 and 7 share similar defence structures)","Nested conditional logic in section 4(2) creating presumptions that shift burdens of proof","Multiple overlapping defences in both criminal (s 4(3)) and civil (s 7(2)) contexts with subtle distinctions","Interaction with other statutes explicitly preserved (s 6(3) references four other Acts)","Judicial discretion provisions requiring balancing of 'just and equitable' considerations (s 7(3))","Retroactivity limitation clause (s 9) creating temporal boundary issues","Missing section numbers (s 4(5), s 4(6), s 4(9)) suggesting amendments have created gaps in numbering","Only 1 defined term in Part 3 ('court'), but heavy reliance on common law concepts (rescission, valuable consideration, good faith) that are undefined"],"plain_english_summary":"**What this law does:**\n\nThis South Australian law tackles false or misleading statements made during business dealings. It has two main jobs:\n\n**1. Criminal penalties for lying in business (Part 2)**\n- Makes it a crime for businesses or their employees to make false statements to trick someone into signing a contract or handing over money/property\n- Fines: up to $100,000 for companies; $20,000 for individuals\n- **Key defence:** If you honestly believed the statement was true and had good reason to think so, you're off the hook\n- Prosecutions need the Attorney-General's approval to start\n\n**2. Better remedies for victims (Part 3)**\n- **Rescission** (cancelling a contract): Even if you've already performed the contract or the false statement became a written term, you can still cancel the deal if you were tricked\n- **Damages** (compensation): Victims can sue for losses as if the lie was deliberate fraud, unless the person who made it had reasonable grounds to believe it was true\n- **Court flexibility:** Judges can keep a contract alive and award damages instead of cancelling it entirely, if that's fairer\n- **No escape clauses:** Businesses can't contract out of these protections—any clause trying to do so is void unless a court thinks it's \"fair and reasonable\"\n\n**Who it affects:** Anyone doing business in South Australia—buyers, sellers, companies, and consumers.\n\n**Why it matters:** Before this Act, contract law made it hard to escape a bad deal even if you'd been lied to. This law levels the playing field by punishing dishonest business practices and giving victims real ways to recover their losses."},"summary":{"complexity_score":2,"scope_assessment":{"changed":false,"description":"Unable to assess whether the scope of the Act changed from its original intent, as no legislative text was provided. The webpage returned a 404 error, meaning the content was inaccessible."},"complexity_factors":["No actual legislative text was available for analysis — only a broken webpage was returned","Complexity score is minimal and provisional, based solely on general knowledge of the Act rather than its text","A proper complexity assessment would require review of the Act's actual provisions, definitions, and exceptions"],"plain_english_summary":"**No legislation content was retrievable for analysis.**\n\nThe link provided returned a **404 Page Not Found** error from the South Australian legislation website. This means the actual text of the *Misrepresentation Act 1972* (SA) was not available in the content provided — only a broken webpage was returned.\n\n**What is generally known about this Act:**\nThe *Misrepresentation Act 1972* (SA) is a South Australian law that deals with situations where someone is misled into entering a contract because of a **false statement of fact (a \"misrepresentation\")** made by the other party. It gives people legal remedies — such as the right to exit the contract or claim compensation — even where the false statement was made innocently (i.e., the person making it genuinely believed it was true). Before this Act, innocent misrepresentation offered very limited legal recourse.\n\n**Who does it affect?**\n- Anyone entering into a contract in South Australia — including buying property, goods, or services\n- Businesses and consumers who rely on statements made during negotiations\n- It is particularly relevant in **property transactions**, commercial deals, and insurance contracts\n\n**Why does it matter?**\nIt provides important protections against being deceived into a bad deal, even when the deception was unintentional. However, a full and accurate analysis cannot be provided without access to the actual legislative text."},"flash_summary":{"complexity_score":6,"scope_assessment":{"changed":true,"description":"The text records a history of amendments that altered the Act's scope and many specific provisions. Notable changes shown in the legislative history include amendments to s4(1), (2) and (3) (amended by Misrepresentation (Miscellaneous) Amendment Act 1995, No 62/1995); deletions of certain subsections (for example s4(5) deleted by Statutes Amendment (Directors' Liability) Act 2011; s4(7) deleted 1987); amendments to Part 3 provisions (s6(1) and s6(3) amended 1995; s7(1),(2),(4)–(6) amended 1995; ss8 and 9 amended 1995); and deletion of an entire Part 4 (deleted 1996) (see Legislative history section and \"Provisions amended since\" entries). These recorded amendments indicate the Act’s content and operational detail have been modified since original enactment."},"complexity_factors":["Dual regime: criminal sanctions (Part 2, s4) and expanded civil remedies (Part 3, s6–s8) operating in parallel","Statutory evidential presumption about inducement and benefit that shifts evidential burdens (s4(2))","Defences that depend on subjective reasonable belief and objective precautions, with differing tests for representors and non-representors (s4(3); s7(2))","Judicial discretion to refuse rescission and instead declare contract subsisting with damages, creating fact-sensitive remedial outcomes (s7(3)–(5))","Interaction and required coordination with other statutes and awards (s6(3); s7(6))","Attorney-General consent requirement for prosecution concentrates enforcement discretion and affects practical operation (s4(9)–(10))","Treatment of third-party bona fide purchasers as an exception to rescission creates balancing of competing interests (s6(2))","Inclusion of arbitrators within \"court\" broadens dispute-resolution fora and affects procedural routes (s5)"],"plain_english_summary":"# What this law does (mechanically)\n\n- Creates a criminal offence for making a false representation in the course of trade or business if the representation is made for the purpose of inducing someone to enter a contract, pay money, or transfer property (Part 2, s4). Penalties are set: up to $100,000 for a body corporate and $20,000 for other persons (s4(1)).\n\n- Provides evidential presumptions for prosecutions: if a misrepresentation materially induced a person to contract or to transfer money/property and the representor (or their agent/employee) derived a benefit, the law presumes the representation was made to induce that conduct unless disproved (s4(2)).\n\n- Prescribes available defences to criminal liability, including a reasonable belief in truth (s4(3)(a)) and, for persons other than the representor, either reasonable precautions to prevent the offence or lack of knowledge/reasonable expectation of knowledge (s4(3)(b)). Misrepresentation is defined as any statement false in a material particular (s4(4)).\n\n- Requires the Attorney-General's consent before criminal proceedings can be started under the offence (s4(9)–(10)).\n\n- Expands civil remedies for misrepresentation (Part 3): removes certain technical bars to rescission so that a contracting party may rescind despite the misrepresentation being turned into a contractual term, performance having taken place, or documents being registered (s6(1)). There is an express exception where a third party has in good faith acquired an interest for value (s6(2)).\n\n- Makes persons liable for damages in tort as if the misrepresentation had been made fraudulently where a party was induced to contract by a misrepresentation and a defendant would have been liable if the misrepresentation had been fraudulent (s7(1)). Defences parallel the criminal defences (s7(2)).\n\n- Gives courts the discretion, when rescission would otherwise be available, to declare the contract subsisting and award fair and reasonable damages instead (s7(3)–(5)). Courts must account for other awards of damages or compensation when assessing amounts (s7(6)).\n\n- Limits the effect of contractual exclusion clauses that would try to exclude or restrict liability or remedies for pre-contractual misrepresentations; such clauses are ineffective except to the extent a court allows reliance on them as fair and reasonable in the circumstances (s8).\n\n- Defines that, for Part 3, the word \"court\" includes an arbitrator (s5) and makes Part 3 inapplicable to misrepresentations or contracts made before the Act commenced (s9).\n\n# Who this affects (who pays, who decides)\n\n- Persons and bodies corporate making representations in trade or business face criminal exposure and fines if the representation is false in a material particular and was made to induce contracting or payments (s4(1), s4(4)). Bodies corporate face higher monetary penalties (s4(1)).\n\n- Persons induced to enter contracts by misrepresentation obtain expanded civil remedies: rescission subject to third-party exceptions (s6(1)–(2)) and damages assessed as if the misrepresentation had been fraudulent (s7(1)).\n\n- Courts (and arbitrators) have decision-making discretion to convert rescission claims into awards of damages and to judge whether exclusion clauses are \"fair and reasonable\" (s7(3), s8, s5).\n\n- The Attorney-General controls whether criminal prosecutions may proceed by withholding or granting consent (s4(9)–(10)).\n\n# Official purpose-claims (as stated in the Act)\n\n- The Act states its aims are to provide criminal sanctions for misrepresentation in certain commercial transactions and to expand remedies available at common law and in equity for misrepresentation (Long title; Part 2 and Part 3 provisions cited: s4; s6–s8).\n\n# Practical effects, incentives, trade-offs and implementation issues (source-grounded)\n\n- Incentives for truthful behaviour: Criminal penalties (s4(1)) and civil liability as if fraudulent (s7(1)) increase the expected cost to traders who make materially false statements. That raises the private incentive to verify statements before making them.\n\n- Compliance and administrative burden: Businesses may need to adopt or strengthen procedures to verify pre-contractual statements or to supervise employees/agents, because a defence for non-representing defendants requires proving they took \"all reasonable precautions\" to prevent the commission of offences by persons acting for them (s4(3)(b)(i)).\n\n- Evidential shifting: The statutory presumption that a misrepresentation which materially induced a contract and produced a benefit was made to induce that conduct shifts an evidential burden onto the defendant to disprove inducement (s4(2)). That may simplify prosecution/civil claims in certain factual patterns but increases the evidential tasks for defendants.\n\n- Judicial discretion and litigation uncertainty: Courts can refuse rescission and instead declare a contract subsisting while awarding damages (s7(3)–(5)). The law also leaves to judicial assessment whether an exclusion clause is \"fair and reasonable\" (s8). Those provisions increase the role of judicial fact-sensitive balancing and may introduce uncertainty about final remedies in advance of litigation.\n\n- Protection of bona fide third parties: The Act preserves the position of third parties who in good faith acquired interests for value by barring rescission where equity would do so (s6(2)). Registration or performance of contracts no longer automatically prevents rescission (s6(1)), but third-party protections remain (s6(2)). This creates a trade-off between enabling injured contracting parties to rescind and protecting subsequent bona fide purchasers.\n\n- Interaction with other statutory regimes: The Act expressly does not affect remedies available under specified land-related Acts (s6(3)), and requires courts to account for other awards of damages or compensation when assessing awards under the Act (s7(6)). This requires litigants and courts to coordinate remedial outcomes across statutes.\n\n- Enforcement gatekeeping: The requirement for Attorney-General consent before prosecution (s4(9)–(10)) places a centralised control point over criminal enforcement that can limit the incidence of prosecutions and concentrates discretion in a single office.\n\n# Likely distribution of costs and benefits (mechanisms, not judgments)\n\n- Benefit accrues to contracting parties induced by misrepresentation who pursue rescission, damages, or both (s6, s7).\n\n- Costs fall on representors (individuals and corporations) who face civil liability and possible criminal fines (s4(1); s7(1)). Corporations face higher statutory penalties (s4(1)).\n\n- Costs of compliance (procedures, supervision, record-keeping) fall primarily on businesses that make pre-contractual statements (s4(3)(b)).\n\n# Implementation risks and potential substitution effects (mechanistic)\n\n- Some businesses may reduce the detail of pre-contractual representations or shift more terms into carefully drafted contractual warranties to limit exposure, relying on court assessments of exclusion clauses (s8). That behaviour would substitute explicit contractual allocation of risk for informal representations.\n\n- The Attorney-General consent requirement (s4(9)–(10)) may result in fewer criminal prosecutions and concentrate enforcement decisions, affecting how the criminal sanction component operates in practice.\n\n# Key statutory references (short list)\n\n- Criminal offence, penalties, definition and defences: s4(1)–(4), s4(9)–(10).\n- \"Court\" includes arbitrator: s5.\n- Removal of bars to rescission and third-party exception: s6(1)–(3).\n- Damages as if fraudulent; court discretion to keep contract subsisting and award damages; offsets: s7(1)–(6).\n- Exclusion clauses limited to what court allows as fair and reasonable: s8.\n- Part 3 not retrospective to pre-commencement misrepresentations/contracts: s9.\n"},"issue_detection":{"absurdities":[],"contradictions":[]}},"importantCases":[],"_links":{"self":"/api/acts/misrepresentation-act-1972","history":"/api/acts/misrepresentation-act-1972/history","analysis":"/api/acts/misrepresentation-act-1972/analysis","conflicts":"/api/acts/misrepresentation-act-1972/conflicts","importantCases":"/api/acts/misrepresentation-act-1972/important-cases","documents":"/api/acts/misrepresentation-act-1972/documents"}}