Employment Agents Registration Act 1993

Definitions and scope

• Employment agent, the statute’s central concept, is defined in s 3 as “a person who, for monetary or other consideration, carries on the business of procuring workers for persons who desire to employ or engaging others in any kind of work, or procuring employment for persons who desire to be employed.” Charitable or benevolent organisations operating on a non-profit basis are excluded from the definition, as are any classes excluded by regulation (s 3(c)-(d)). The definition spans both procurement on behalf of employers and procurement on behalf of job-seekers.
• Employment contract is defined broadly in s 3 to include contracts of service and other arrangements under which a person performs remunerated work, subject to specified exclusions where the work is ancillary to the supply or use of goods or the conveyance of goods by a vehicle provided by a person other than the employer, and subject to any classes excluded by regulation.
• Worker is a natural person performing work under an employment contract (s 3).

Licensing and registration architecture

• Licensing is mandatory: a person must not carry on business as an employment agent or hold themselves out as one without a licence (s 6). The licence is the primary legal instrument authorising the business.
• Applications must be made to the Director in a form approved by the Minister, accompanied by at least two character references meeting regulatory requirements, and by the prescribed fee (s 7(1)). Applicants must advertise their application in the prescribed manner and allow a 10 day window for written objections (s 7(4)-(5)). The Director is required to grant a licence where satisfied as to fitness and properness and suitable arrangements to fulfil obligations (s 7(11)). A licence only takes effect upon payment of the prescribed licence fee (s 7(12)). Licences run for a period not exceeding two years (s 8) and are subject to renewal processes (s 9).
• Registered premises: licensed agents must carry on business only at premises registered under s 16, with limited exceptions for specified days or places permitted by the Director (s 16(3)). Registered premises must display specified notices (s 17), and agents must maintain conspicuous displays of their fee scale at registered premises (s 19(1)).
• Managers: where the licence holder is not directly managing the business or is a body corporate, the business must be managed under the personal supervision of an approved natural person resident in the State (s 11). Failure to do so for more than 14 days (unless excused) is an offence (s 11(2)).

Duties and prohibitions

• Duties to workers: an employment agent must not demand or receive fees from a listed person merely because the person is listed or because the agent seeks employment for them, subject to limited exceptions for deposits and payments authorised by regulation (s 20(1)-(2)). Recurring fees and fees where the agent hires the worker themselves are prohibited (s 20(3)). Where an agent procures employment for a person, the agent must ensure delivery to the person of a prescribed statement containing details about the employer, first attendance, workers compensation application, taxation arrangements, awards, superannuation, paid leave and expense arrangements (s 20(4)).
• Duties to employers: an agent must not demand or receive fees for seeking or obtaining another to work for the employer unless either the worker made contact with the employer or a written agreement between the employer and agent exists (s 21(1)). Deposits are allowed subject to specified holding and application rules (s 21(2)). An agent may not charge an employer a fee exceeding the rate shown on the displayed scale of fees (s 21(3)).
• Records and retention: agents must keep full and correct records listing clients, deposits, prescribed employment information, fees paid, and other prescribed material, and must keep these records on registered premises for one year after making (s 22).

Enforcement concepts

• Inspection powers are given to inspectors appointed under the Industrial Relations Act 1972 and allow entry at reasonable times, production and copying of documents, examination and questioning, and licence production (s 23(1)). Persons may be required to state identity where reasonably suspected of offending (s 23(1)(d)) and to answer questions about administration matters (s 23(1)(e)), but there is a protection against self-incrimination for answers or documents that would tend to incriminate (s 23(5)).
• Offences include unlicensed operation (s 6), breaches of licence conditions (s 10(4)), failure to manage under an approved manager (s 11(2)), not operating from registered premises (s 16(1)), failing to keep records (s 22(4)), obstruction of inspectors (s 23(4)), assisting false representation as an agent (s 24), false or misleading statements in material furnished under the Act (s 26), and contravention of exemption conditions (s 4(4)). Penalties are expressed by reference to divisional fines and imprisonment maximums listed in the Appendix.
• Prosecution controls: prosecutions must generally be commenced by the Director or an inspector, with Ministerial consent required for any other party (s 28(2)); prosecutions must be commenced within three years of the alleged offence (s 28(1)).

Administrative discretion and rulemaking

• The Director is empowered to impose licence conditions (s 10), to extend objection periods in absolute discretion (s 7(6)), to refuse or grant licences subject to statutory criteria (s 7(11)), and to cancel licences on specified grounds with a pre-cancellation notice and opportunity to make submissions (s 13(1)-(2)). The Director may delegate powers to persons engaged in the administration of the Act (s 29). The Minister may grant exemptions by Gazette on conditions and vary or revoke them (s 4).
• Regulations can exempt classes, prescribe forms, regulate display, require returns, provide information to persons dealing with agents, prescribe fees and penalties, and otherwise implement detail (s 30). The Act therefore sets policy-level standards while relying on regulations for operative particulars.

Non-derogation and transitional features

• The Act is expressly in addition to and does not derogate from other statutory provisions and civil remedies unless expressly provided otherwise (s 5). The repealed Employees Registry Offices Act 1915 is explicitly replaced with savings: existing licensees, managers and premises are recognised under the new Act on repeal (s 31(2)).

These are the main statutory constructs the practitioner must map when advising clients, building compliance systems, or designing enforcement processes.

Primary regulated persons

• Employment agents, defined in s 3, are the primary regulated group. Any person who for consideration carries on the business of procuring workers for employers or procuring employment for workers must be licensed (s 6) and will be subject to the full suite of administrative obligations and criminal sanctions where the Act imposes offences. The statutory definition captures natural persons and bodies corporate unless specifically excluded by the regulations or covered by the charity exemption (s 3(c)-(d)).
• Managers: natural persons nominated as managers and approved by the Director are implicated where the licensee is a body corporate or not directly managing the business (s 11(1)). Managers are required to reside in the State and their name must appear on the notice displayed at premises if a manager has been appointed (s 17(b)). The manager’s personal supervision is an explicit statutory requirement and non-compliance is an offence (s 11(2)).

Secondary affected parties

• Workers and prospective workers: the statute imposes duties on agents in relation to workers, including prohibitions on charging certain fees, provision of a prescribed statement when employment is procured (s 20), and record-keeping obligations that concern workers’ transactions (s 22). Workers are beneficiaries of the disclosure and prohibition rules; the Act directly restrains agent behaviour towards workers (s 20).
• Employers and prospective employers: employers who engage the services of employment agents are both the object of agent services and subjects of protections. Agents may not charge employers a fee unless either the worker has made contact or a written agreement exists (s 21(1)). Employers are affected by the requirement that fee charges must not exceed the displayed scale (s 21(3)).

Administrative actors and regulators

• The Director, as defined in s 3 and with powers to grant, refuse, impose conditions on, cancel, transfer and suspend licences, is central to the operation of the Act (ss 7-13). The Minister also has active roles: approving application forms, granting exemptions in the Gazette with conditions (s 4), directing who exercises the Director role (s 3(b)), and the Minister’s consent is required for prosecutions started by third parties (s 28(2)). The Governor makes regulations under s 30; the Director may delegate powers to other administrative staff (s 29).
• Inspectors appointed under the Industrial Relations Act 1972 are given powers of entry, inspection and questioning for enforcement (s 23). The Act therefore uses the existing inspectorate rather than creating a new inspector class.

Adjoining statutory participants

• Tribunal: the South Australian Civil and Administrative Tribunal has jurisdiction to review Director decisions under Division 2 (s 15). The Tribunal’s role affects licensees who wish to seek merits review of licensing decisions and the Director’s use of interim orders to keep licences in force pending review (s 15(3)).
• Courts: criminal prosecutions for offences under the Act and orders for repayment of fees obtained while unlicensed (s 14) will involve courts. The Act provides that only the Director or an inspector may commence proceedings, except with the Minister’s consent (s 28(2)), concentrating prosecutorial discretion in public agencies.

Classes with potential exemptions or regulatory relief

• Charitable or benevolent organisations carrying out activities on a non-profit basis are excluded from the employment agent definition (s 3(c)). The Minister may also grant exemptions to persons or premises by Gazette subject to conditions (s 4), and regulations may designate classes of persons or premises to be exempt (s 30(2)(a)). These mechanisms affect whom the licensing regime will apply to in practice.

Entities affected indirectly by compliance costs and market effects

• Businesses that buy and sell staffing services or workers supplied by employment agents will face effects from the statutory requirements in the form of fee caps, disclosure duties and registration. Employers using agent-supplied labour may see administrative adjustments in contracting and procurement practices because agents must provide prescribed statements to workers (s 20(4)) and maintain records accessible to inspectors (s 22).
• Bodies corporate that hold licences will be affected by the fitness and properness assessment of persons who can exert substantial control or influence over the body corporate as a licence holder (s 7(11)(a)(ii)(A) and s 13(1)(d)).

Groups with restricted capacities

• Private litigants or private prosecutors have reduced capacity to commence prosecutions under the Act because s 28(2) restricts prosecutions to the Director or an inspector except with Ministerial consent. This concentrates enforcement in public hands and affects private enforcement strategies.

In short, the Act affects anyone operating or interacting with employment agencies in South Australia: agents and their managers, the workers they list or place, the employers who engage them, administrative officials (Director, Minister, inspectors), and adjudicative bodies (Tribunal, courts). The regulatory reach is broad because the licensing requirement is absolute, subject only to narrow statutory and regulatory exclusions and Ministerial exemptions.

Licensing and administrative rights and duties

• Obligation to hold a licence: s 6 creates the baseline duty not to carry on business as an employment agent or hold oneself out as such unless licensed. The consequent right is that a valid licence confers legal authority to carry on the business subject to stated conditions (s 10).
• Application procedural duties: applicants must apply in writing in a Minister-approved form, supply at least two character references meeting regulatory standards, pay the prescribed fee, provide further information when required (s 7(1)-(2)), and advertise the application as prescribed with a 10 day window for objections (s 7(4)-(5)). Applicants have procedural rights: the Director must give written reasons and notify review rights where an application is refused (s 7(13)), and the licence will be granted where the Director is satisfied about fitness and arrangements to meet obligations (s 7(11)). An applicant may require determination within a specified time if the Director does not decide within the prescribed time (s 7(9)-(10)), with the operation that a failure to decide within the required period results in an implicit refusal.
• Manager approval duty: where the holder is not directly involved in management or is a body corporate, the business must be managed under the personal supervision of a Director-approved natural person resident in the State (s 11(1)). Failure to manage as required for more than 14 days is an offence (s 11(2)).
• Licence condition powers: the Director may impose conditions in writing at grant or during the currency of the licence and may vary or revoke them at any time (s 10(2)-(3)). Licence-holders have the right to be served notice of such conditions in writing (s 10(3)(a)) and face criminal sanctions for contravening conditions (s 10(4)). Regulations may also prescribe licence conditions (s 10(1)(a)).

Operational duties to workers and employers

• Duties to workers: s 20 prohibits charging a fee simply for being listed or for the agent seeking employment on a worker’s behalf. Exceptions allow deposits to be taken subject to prescribed holding and application rules, and other payments authorised by regulation (s 20(2)). The agent must not charge recurring fees or charge a worker if the worker is hired by the agent (s 20(3)). When the agent procures employment, the agent must provide the placed person with a prescribed statement giving employer identification, first attendance, workers compensation coverage and other insurance details, taxation arrangements, applicable award, superannuation entitlements, paid leave accruals, and expense reimbursement arrangements (s 20(4)). Non-compliance constitutes an offence (s 20(5)).
• Duties to employers: s 21 requires that an agent not demand or receive a fee for seeking or obtaining a worker for an employer unless the worker initiated contact with the employer or a written agreement with the agent exists (s 21(1)). The agent may take a deposit subject to holding conditions until a fee becomes chargeable or agreement on repayment (s 21(2)). An agent must not charge an employer a fee exceeding the displayed scale of fees applicable in the particular case (s 21(3)). Failure to observe these requirements is an offence (s 21(4)).

Record-keeping and display duties

• Record-keeping: s 22 obliges agents to keep full and correct records containing client names, deposit details, prescribed information about arranged employment, fees paid in connection with hiring, and other prescribed information. Agents must also keep other prescribed records, accounts and documents and keep them on registered premises for one year after creation (s 22(1)-(3)). Not keeping the records is an offence with a Division 7 fine (s 22(4) and Appendix).
• Display duties: s 17 requires a conspicuous notice at registered premises showing the agent’s name and the name of any appointed manager. s 19 requires conspicuous public display of the agent’s scale of fees at registered premises and lodgement of the scale and any changes with the Director in accordance with regulations (s 19(1)-(2)). Non-observance is an offence (s 19(3)).

Inspection, information and cooperation duties

• Inspectors may require production of documents and may question persons suspected of offences or with knowledge relevant to administration (s 23(1)(b)-(e)). The person in charge of premises must provide assistance and facilities to enable inspection powers to be exercised (s 23(3)). There is a duty not to hinder, abuse, refuse or fail to comply with inspectors without reasonable excuse (s 23(4)), though persons are not required to answer questions or produce documents where doing so would tend to incriminate them (s 23(5)). Obstruction or abusive behaviour attracts a Division 6 fine (s 23(4)).

Prohibitions relating to identity and information

• Assistance to false pretence: s 24 forbids supplying documents, forms or assistance to another person to enable that person to falsely pretend to be a licensed agent or to perform employment agent functions in the course of business. The penalty is a Division 9 fine.
• False or misleading statements: s 26 makes it an offence to make a statement that is false or misleading in a material particular when furnishing information required under the Act. Penalty is Division 6.

Enforcement and procedural rights

• Right to review: s 15 grants the Tribunal jurisdiction to review Director decisions under Division 1, with a 28 day limitation period from receipt of notice of decision (s 15(2)). For reviews relating to refusal to renew, transfer or cancellation, the Director or Tribunal may order that the licence remain in force until determination of the review (s 15(3)). Applicants are entitled to written reasons where the Director refuses an application or renewal and must be informed of review rights (s 7(13), s 9(4)).
• Pre-cancellation procedural rights: prior to cancelling a licence the Director must notify the holder in writing of proposed cancellation and allow at least 28 days for submissions (s 13(2)). This secures natural justice before the cancellation power is exercised.

Limits and safeguards

• Non-derogation: s 5(2) clarifies that the Act does not, except as expressly provided, limit or derogate from civil remedies at law or in equity. This preserves private legal remedies alongside statutory enforcement.
• Protection against compelled self-incrimination: s 23(5) ensures persons are not required to answer or produce documents where the response or document contents would tend to incriminate them.

Other rights and limitations

• Fees not recoverable where unlicensed: s 14 deprives persons acting as an employment agent in contravention of the licensing Division of entitlement to recover fees and permits courts convicted of the offence, on application by the prosecutor, to order repayment of fees received. This mechanism provides a civil remedy tied to criminal conviction.
• Delegation: s 29 allows the Director to delegate powers by instrument in writing but reserves revocability and the Director’s ability to act personally. This allocates administrative workload while retaining central accountability.

These statutory duties and rights create a regulatory ecosystem that prescribes entry requirements, operational constraints, disclosure and record-keeping duties, inspection and enforcement mechanisms, and procedural protections for affected parties. Practitioners should map each duty to the relevant licence conditions, the prescribed regulations and the stipulated penalties.

Penalty architecture

• The Act uses divisional penalty levels rather than specifying monetary amounts within the text. The Appendix maps divisional numbers to maximum fines and, where applicable, imprisonment terms (Appendix). For example, Division 6 offences attract a maximum of one year imprisonment or a fine up to $4,000, and carry an expiation fee of $300; Division 7 offences attract a maximum fine up to $2,000 and an expiation fee of $200; Division 9 offences attract a monetary penalty of up to $500 with an expiation fee of $100; Division 11 fines are capped at $100 with $50 expiation fee (Appendix). The Act references these divisions for specific offences (see multiple provisions including s 4(4), s 6, s 10(4), s 11(2), s 16(1), s 19(3), s 22(4), s 23(4), s 26).

Criminal offence framework and civil consequences

• Operating without a licence, contravening licence conditions, failure to comply with display and record obligations, obstructing inspectors and providing false information are criminalised. The Act also stipulates that a person who acts as an employment agent in contravention of the licensing Division is not entitled to recover any fee for so acting and a court convicting the person may order repayment of fees received on application of the prosecutor (s 14). This creates a dual penalty set: criminal sanction plus disgorgement by court order. The disgorgement requires conviction to trigger the court order mechanism under s 14.

Inspection and investigatory powers

• Inspectors appointed under the Industrial Relations Act 1972 have broad powers to enter and inspect premises at reasonable times, require production of records, examine and copy documents, require identity details of persons suspected of offences, and require persons with knowledge to answer questions (s 23(1)(a)-(f)). Inspectors may be assisted by reasonable persons and the person in charge of premises must provide assistance and facilities (s 23(2)-(3)). The Act criminalises hindering or obstructing inspectors, refusing reasonable requirements, failing to answer questions, or falsely claiming to be an inspector, subject to the self-incrimination protection (s 23(4)-(5)). Inspectors themselves are subject to criminal sanctions for abusive conduct or unlawful use of force (s 23(6)).

Prosecution controls and limitation period

• s 28 centralises prosecutorial authority by stipulating that prosecutions must generally be commenced by the Director or an inspector. Private prosecutions require the Minister’s consent (s 28(2)). This limits the capacity of private parties to bring enforcement proceedings under the Act. The Act imposes a three year limitation period for commencing proceedings for offences under the Act (s 28(1)). There is also an evidential provision concerning certificates purporting to be Ministerial consent or Director delegation being accepted in the absence of contrary proof (ss 28(3), 29(3)).

Administrative remedies and licence actions

• Administrative enforcement tools include the Director’s power to cancel licences on reasonable grounds such as improper obtaining, breach of licence conditions or statutory provisions, or loss of fitness and properness of the holder or controlling individuals (s 13(1)). Prior notice and a minimum 28 day opportunity to make submissions are required before cancellation is effected (s 13(2)). The Director may also impose conditions at grant or during currency of a licence and may vary or revoke conditions, with non-compliance constituting an offence (s 10(2)-(4)).
• The Tribunal has jurisdiction to review Director decisions under Division 1 (s 15(1)). For reviews related to refusal to renew, to transfer, or to cancel a licence, the Director or Tribunal may order that the licence remain in force until the review is determined (s 15(3)). This creates an administrative stay mechanism pending review.

Expiation framework and regulatory discretion

• The Appendix includes expiation fees for certain divisions, enabling administrative settlement of some offences without prosecution (Appendix). Regulations may prescribe penalties not exceeding a Division 7 fine for breaches of regulations (s 30(2)(h)), enabling further enforcement of regulatory detail through subordinate instruments.

Other enforcement mechanisms

• The Act creates offences for assisting false pretences to present as a licensed agent (s 24) and for making false or misleading statements in material furnished under the Act (s 26), both aimed at protecting the integrity of the licensing system. Liability for acts and omissions of employees is imputed to agents unless the agent proves the person was not acting in the course of employment (s 25), easing enforcement against principal entities.
• The Director may delegate powers to staff but retains revocability and the capacity to act personally (s 29). The Minister can grant exemptions by Gazette subject to conditions and may vary or revoke them; contravention of exemption conditions is an offence (s 4).

In practice, enforcement under the Act operates through a combination of: preventive controls (licensing, conditions, registration and display obligations), investigatory activity by inspectors with statutory powers of entry and questioning, administrative sanctions including licence cancellation and conditions, criminal penalties for named contraventions, civil disgorgement powers linked to convictions, and review mechanisms via the Tribunal. The statutory concentration of prosecutorial initiation in public hands and the ability to settle offences by expiation are important procedural features that shape enforcement strategy.

Express non-derogation

• Section 5(1) and (2) expressly state that the provisions of the Act are in addition to and do not derogate from provisions of any other Act and, except as expressly provided, will not be taken to limit or derogate from any civil remedy at law or in equity. This means statutory remedies and private civil remedies remain available alongside regulatory enforcement under this Act (s 5).

Inspector appointment and cross-Act powers

• Inspectors exercising powers under s 23 are defined as inspectors appointed under the Industrial Relations Act (S.A.) 1972 (s 3). The Act therefore leverages the existing inspectorate framework from the Industrial Relations Act, creating cross-operability between inspector powers and the enforcement needs of the Employment Agents Registration Act. Practitioners should check the Industrial Relations Act for the appointment and powers of inspectors that underpin s 23’s operationalisation.

Interactions with workers compensation and taxation law via disclosure duty

• The Act requires agents to provide placed workers with particulars on whether the Workers Rehabilitation and Compensation Act 1986 will apply and details of other insurance arrangements (s 20(4)(c)). The duty intersects with workers compensation law because the agent must provide accurate information about coverage. It also requires detail on taxation arrangements (s 20(4)(d)), which interacts operationally with taxation law and clients’ payroll compliance obligations. The Act does not resolve legal questions about coverage or tax treatment; it requires disclosure of the arrangements in place.

Tribunal and administrative law interface

• Reviews of Director decisions under Division 1 are to be made to the South Australian Civil and Administrative Tribunal as recognised in s 15. The 2019 Statutes Amendment (SACAT) Act amendments substituted s 15 to provide Tribunal jurisdiction (Legislative history entries show Tribunal inserted by 14/2019 s 73, commencing 2.12.2019). This interfaces the Act with the SACAT Act and its procedures, including time limits for review and possible interim orders allowing licences to remain in force during review (s 15(3)). Practitioners must therefore navigate both Acts when pursuing merits review.

Regulatory delegation and administrative law principles

• Section 29 permits delegation by the Director, but subject to revocability. Administrative decision-making under the Act is therefore subject to general administrative law principles (natural justice, reasonableness) as applied through judicial review and Tribunal oversight. The Act’s requirement for written notice of reasons on refusals and pre-cancellation notice with an opportunity to make submissions (ss 7(13), 13(2)) reflect procedural protections that interact with broader administrative law rights.

Regulatory details and subordinate legislation

• Section 30 empowers the Governor to make regulations covering a wide range of implementation matters, including exemptions, forms of notices, display requirements, returns to the Director, information provision to persons dealing with agents, and fee setting. Regulations may prescribe penalties not exceeding a Division 7 fine for breaches (s 30(2)(h)). The Act therefore delegates many operational details to the regulations, which practitioners must consult in alongside the Act to obtain the full compliance picture.

Transitional repeal and continuance of rights under earlier Act

• Section 31(2) provides transitional continuity for licensees under the repealed Employees Registry Offices Act 1915, treating existing licence-holders, managers and licensed premises as holders and registered premises under the 1993 Act. The legislative history confirms that the Employment Agents Registration Act 1993 repealed the 1915 Act. This interaction protects continuity of existing authorisations at the time of transition.

Limits on private prosecutions and interaction with prosecutorial practice

• Section 28(2) restricts commencement of prosecutions to the Director or an inspector, except with the Minister’s consent. This is an interaction with criminal process and prosecutorial discretion; private parties wishing to initiate prosecutions will require Ministerial consent. The evidentiary provision that a certificate purporting to be from the Minister evidencing consent will be accepted absent proof to the contrary (s 28(3)) interacts with standard evidentiary practices.

Relationship with other workplace regulation regimes

• The Act explicitly preserves other civil and statutory remedies (s 5), and its disclosure duties reference the Workers Rehabilitation and Compensation Act 1986 (s 20(4)(c)). Many operational issues in the supply of labour, such as minimum wages, awards, superannuation, leave entitlements and tax withholding, are governed by other statutes and industrial instruments. The Act interacts by requiring disclosure and by creating licensing standards, but it does not itself settle entitlements under award, tax or superannuation law. The Act’s use of the “award” concept in s 20(4)(e) signals overlap with industrial award regimes.

In short, the Act is designed to sit alongside and not replace other statutory regimes. Practitioners must read the Act together with relevant regulations, the Industrial Relations Act for inspector authority, workers compensation and tax law for disclosure content, and the SACAT Act and administrative law for review and natural justice processes.

Overview

• The document records the principal Act (Employment Agents Registration Act 1993 No 69), dates of assent and commencement, subsequent amending Acts, and specific provisions varied. The legislative history shows key amendments in 2011 (Statutes Amendment (Directors' Liability) Act 2011, No 36) and in 2019 (Statutes Amendment (SACAT) Act 2019, No 14), with detailed references to committal or commencement dates for particular parts.

1993 principal Act and commencement

• The principal Act, Employment Agents Registration Act 1993 (No 69), received assent on 9 September 1993 and commenced on 9 September 1995 pursuant to s 7(5) of the Acts Interpretation Act 1915 (Legislative history table).

2011 amendments

• Statutes Amendment (Directors' Liability) Act 2011 (No 36), assent 22 September 2011. The legislative history indicates Pt 9 (s 11) commenced 1 January 2012 (Gazette 15.12.2011 p4988). The provisions amended column notes that s 27 was deleted by 36/2011 s 11, effective 1.1.2012. The main text of the Act as provided now omits s 27; the note in Provisions amended confirms deletion.

2019 amendments: SACAT insertion and consequential changes

• Statutes Amendment (SACAT) Act 2019 (No 14), assent 11 July 2019. Commencement for Pt 10 (ss 73 to 77) is recorded as 2 December 2019 (Gazette 21.11.2019 p3928). The Provisions amended list indicates:
  • s 3: insertion of "Tribunal" by 14/2019 s 73, commencing 2.12.2019.
  • s 7(13) amended by 14/2019 s 74, 2.12.2019.
  • s 9(4) amended by 14/2019 s 75, 2.12.2019.
  • s 15 substituted by 14/2019 s 76, 2.12.2019. These changes reflect substitution of original rights of appeal to the Magistrates Court in favour of references to the South Australian Civil and Administrative Tribunal and related procedural adjustments. The transitional provisions associated with the SACAT amendment (Statutes Amendment (SACAT) Act 2019, Pt 10) include s 77 which ensures that rights of appeal to the Magistrates Court in matters in existence at the relevant day will be exercised before the Tribunal, with savings for proceedings already before the Magistrates Court (Transitional provisions).

Transitional provisions and repeal of earlier statute

• The principal Act repealed the Employees Registry Offices Act 1915. Section 31(2) of the 1993 Act preserves continuity: licensees, licensed premises and managers under the 1915 Act were taken to be equivalents under the 1993 Act, and the Director was required to issue appropriate licences. The legislative history notes the repeal relationship explicitly.

Other technical amendments and legislative revision

• Notes indicate that references to other legislation, instruments, and titles may be obsolete because of later renaming or revision (standard revision note). Section 2 was omitted under the Legislation Revision and Publication Act 2002, and s 31(1) was omitted under the same Act. The Appendix is provided for convenience and reflects divisional penalties as provided under s 28A of the Acts Interpretation Act 1915. The legislative history entries show which provisions were varied and the corresponding amendment Acts.

Practical effect of amendments

• The 2019 SACAT amendments transferred review jurisdiction to the Tribunal and updated cross-references and procedural provisions accordingly (see s 15 as substituted and related amendments to s 7(13) and s 9(4)). The 2011 amendment removed s 27 and may have adjusted directors’ liability references elsewhere. Delegations, evidentiary certificates for Director delegations and Ministerial consent certificates remain in the Act (ss 28(3), 29(3)), suggesting a continued reliance on documentary proof of executive action in enforcement contexts.

Record of commencement and effective dates

• The legislative history provides exact commencement dates where available and identifies the parts of the amending Acts that affected particular sections. Practitioners must use the legislative history to determine which version of a provision applied at a given historical date. The Act’s transitional provisions and amendment log permit an audit trail for continuity of licences and for administrative process changes like the move to SACAT.

In sum, the Act has undergone technical and administrative amendments since 1993, with a notable administrative reform in 2019 relocating merits review to the South Australian Civil and Administrative Tribunal and preserving procedural rights via transitional provisions. The 2011 amendment removed at least one provision (s 27). Users must consult the legislative history for timing and scope of these changes when dealing with historical matters.

Source limitation

• The supplied statutory text contains no case law, adjudicative decisions, or judicial interpretations. The Act’s text and legislative history do not list any judicial decisions. Therefore, there are no adjudicated legal authorities named in the source to summarise.

Statutory review avenue and procedural mechanism

• The Act provides an internal administrative tribunal route: the South Australian Civil and Administrative Tribunal has jurisdiction to review Director decisions under Division 1 (s 15(1)). An application for review must be made within 28 days after notice of the decision unless the Tribunal allows a longer period (s 15(2)). The Tribunal’s powers under section 36 of the South Australian Civil and Administrative Tribunal Act 2013 apply to the extent relevant and not derogatory to the Act (s 15(3) cross-reference). For certain reviewable Director decisions,refusal to renew, refusal to transfer, or cancellation,the Director or the Tribunal may order that the licence remain in force until the review is determined (s 15(3)). The 2019 Statutes Amendment (SACAT) Act transitional provisions ensure continuity for matters that were in existence immediately prior to the amendments by enabling Tribunal exercise of rights to appeal that would previously have been exercised in the Magistrates Court (Transitional provisions associated with the 2019 Act, s 77).

Implications of absent litigation record in source

• The absence of litigated authorities within the statute means practitioners must seek relevant case law elsewhere to understand judicial interpretation of key provisions such as fitness and properness assessments (s 7(11)), the scope of inspector powers and self-incrimination protections (s 23), the exercise of the Director’s cancellation discretion (s 13), or the court’s approach to ordering repayment of fees where an unlicensed person has acted as an agent and been convicted (s 14). The statutory framework leaves many implementation details to administrative practice, the regulations, and judicial interpretation, so real-world application will be shaped by decisions outside this source.

Administrative review and evidential mechanisms

• While the Act does not contain litigation history, it includes evidentiary and procedural features likely to feature in litigation or review proceedings. For example, the Act provides that an apparently genuine certificate of the Minister certifying consent to commencement of proceedings will, in the absence of proof to the contrary, be accepted as proof of the matter so certified (s 28(3)), and a similar evidential provision applies to Director delegations (s 29(3)). Such statutory evidentiary presumptions are likely to be relevant in contested enforcement or review matters.

Practical next steps for litigators and researchers

• Because no litigation history is given in the source, practitioners aiming to advise on likely legal outcomes should:
  • search SACAT decisions and Magistrates Court files for cases under the Act prior to 2019 to trace judicial interpretation of key terms and enforcement actions;
  • review administrative records and regulatory determinations made by the Director under ss 7-13 to understand how fitness and properness and licence conditions are assessed in practice;
  • examine prosecution records for any patterns in enforcement priorities given that prosecutions must generally be commenced by the Director or an inspector (s 28), and the Minister’s consent is required for others;
  • consult decisions that address the interplay between inspector powers under the Industrial Relations Act and the exercise of powers under s 23 of this Act.

Summary

• The Act itself provides the institutional pathway for review and enforcement but does not include any adjudicated cases. Practitioners must therefore supplement statutory analysis with external case law searches and administrative decision records to form a litigation-ready view of how the Act’s provisions have been interpreted and applied.

Deemed refusal and timing traps

• The Act contains specific timing mechanisms that can work against applicants. Section 7(9)-(10) allows an applicant to require the Director to determine an undecided application within a period specified by the applicant; if the Director fails to decide within that period, the application is taken to be refused (s 7(10)). Applicants who trigger this provision must therefore be cautious: a deemed refusal may foreclose administrative negotiation opportunities and trigger review rights that require timely Tribunal applications (s 15(2)). Licence applicants should be mindful of prescribed times for decision and the strategic effect of declaring an expedited determination.

Licence not operative until fee paid

• Where the Director grants a licence, it does not come into force until the prescribed licence fee is paid (s 7(12)). Payment is a condition precedent to the licence’s operation. Applicants who delay or fail to pay the prescribed fee are not licensed despite a grant, exposing them to s 6 offences and the s 14 bar on recovering fees. Practitioners should ensure payment systems are arranged promptly on grant.

Advertising and objection process

• The requirement to advertise a licence application in a prescribed manner and allow a 10 day window for objections (s 7(4)-(5)) creates a public exposure risk and a timeline for opposition. The Director may extend the period for lodging objections in absolute discretion and subject to conditions (s 7(6)). Applicants must monitor any advertisement and be prepared for oral hearings where objections are lodged and for a hearing if the Director will not rely on documentary material alone (s 7(7)). The practical consequence is potential delay, adverse publicity and the need to prepare submissions at short notice.

Manager approval and residency requirement

• If the licence-holder is not directly involved in management or is a body corporate, the business must be managed under the personal supervision of a resident natural person approved by the Director (s 11(1)). The requirement that the manager be a resident of the State can create operational constraint where corporate groups manage staffing agencies centrally across jurisdictions. Failure to have an approved resident manager for more than 14 days without Director permission is an offence (s 11(2)). Organisational planners must insert a compliant management structure and secure Director approval in advance of staff or structure changes.

Registered premises and mobility limits

• Licensed agents must carry on business only at registered premises under s 16(1) subject to exceptions the Director may permit for specified days or periods at other places (s 16(3)). This restricts mobile or multi-site operations unless specific Director approvals are obtained. The Director’s power to permit temporary operation at non-registered sites creates a compliance pathway but also requires administrative approvals that, if omitted, expose agents to a Division 7 fine.

Fee rules and recoupment prohibition risk

• Sections 20 and 21 impose nuanced limits on what agents may charge and when. Agents must not demand fees merely for listing or seeking employment on a person’s behalf except for deposits held subject to strict rules (s 20(1)-(2)). Agents must not charge recurring fees or charge a worker if the agent hires the worker themselves (s 20(3)). For employers, agents cannot demand fees unless the worker made contact or a written agreement exists (s 21(1)). Agents must also charge employers no more than the displayed scale (s 21(3)). These prohibitions constrain revenue models that rely on ongoing subscription fees or placement commissions not grounded in a written agreement or worker-initiated contact. Non-compliance is an offence (s 20(5), s 21(4)).

Record-keeping and retention specificity

• Records required by s 22 must be kept on the registered premises for one year after their making (s 22(3)). Practically, this means that relocated agents must ensure physical or accessible storage at the registered premises and that records are retained for at least one year. Failure to keep records correctly or on premises risks a Division 7 fine (s 22(4)). The Act does not specify electronic versus paper formats,regulations may do so,so agents should check regulations for required file formats and record content.

Inspector powers and self-incrimination

• Inspectors can require production of documents and answers to questions (s 23(1)(b), (e)). While s 23(5) protects persons from having to answer questions or produce documents that would tend to incriminate them, this is not a blanket immunity. Persons should therefore be careful in interviews and be aware that providing documents or admissions that do not incriminate still may be required. Obstruction, abusive conduct, or refusal without reasonable excuse is an offence (s 23(4)). Agents should have protocols for interaction with inspectors that preserve claim rights while complying with lawful requirements.

Limits on private enforcement

• Section 28(2) constrains private prosecutions by requiring the Director or an inspector to commence proceedings except with the Minister’s consent. Private parties wishing to bring enforcement actions must obtain Ministerial consent, which may not be forthcoming. This restricts the ability of competitors, clients or workers to rely on private criminal prosecutions as an enforcement lever under the Act.

Ministerial and Director discretion

• The Minister may grant exemptions in the Gazette subject to conditions and may vary or revoke them at any time (s 4). The Director has various absolute discretions such as extending objection periods (s 7(6)), imposing licence conditions, varying conditions, and cancelling licences on reasonable grounds (ss 10, 13). These discretions mean that regulatory outcomes can depend heavily on administrative practice. Applicants and licensees should document interactions and decisions to preserve grounds for review.

Repayment and civil consequence linkage to conviction

• Section 14 provides that a person acting as an agent without a licence is not entitled to recover fees and allows a court convicting the person to order repayment on application of the prosecutor. Because this remedy is tied to conviction, victims who seek repayment must rely on successful criminal proceedings rather than an independent civil claim under this provision. However, s 5 preserves civil remedies otherwise available.

Evidential certificates

• Sections 28(3) and 29(3) permit apparently genuine Ministerial certificates of consent and Director delegation certificates to be accepted as proof absent contrary evidence. Parties facing enforcement should verify documentary certifications as early as possible because courts and tribunals will accord presumptive weight to such certificates unless rebutted.

Regulations will matter

• Section 30 grants wide regulation-making powers to the Governor across exemptions, forms, display, information obligations and fee prescription. Many operational details that create compliance obligations or give practical effect to duties will be in the regulations rather than the Act itself. Failure to consult regulations can lead to inadvertent non-compliance. Practitioners must ensure they consider both the Act and the regulations.

In summary, the “gotchas” are largely practical and procedural: timing and deemed refusals, the need for prompt payment of licence fees, residency and manager approval requirements, premises registration, nuanced fee rules, strict record-keeping and interaction protocols with inspectors, constrained private prosecution options, and significant administrative discretion. These features can generate unintended consequences for business models that rely on cross-border management, recurring service fees, or rapid operational changes.

Licensing pathway and practical checklist

• Apply early and in the approved form: make the licence application to the Director in the form approved by the Minister, include at least two character references that are not disqualified under the regulations and meet regulatory requirements, and pay the prescribed application fee (s 7(1)). Be prepared to supply further information verified by statutory declaration if required by the Director (s 7(2)). Because licences take effect only upon payment of the prescribed licence fee, ensure payment mechanisms are in place immediately on grant to activate the licence (s 7(12)).
• Public notice and objection readiness: advertise the application in the prescribed manner and monitor for objections during the 10 day window after advertisement (s 7(4)-(5)). If objections are lodged, the Director may require a hearing with at least seven days notice to the applicant and any objector (s 7(7)). Consider pre-filing responses and compiling documentary evidence to support fitness and operational capability to satisfy s 7(11).
• Prepare for fitness and properness assessment: collect and organise evidence of character, experience and management competence. For natural person applicants the Director must be satisfied the applicant is fit and proper and that the applicant or proposed manager has sufficient knowledge and experience (s 7(11)(a)(i)). For bodies corporate, gather information on persons in positions to control or influence the corporate affairs, and ensure those persons meet the fitness and properness standards (s 7(11)(a)(ii)). Anticipate checks on criminal history, insolvency or disciplinary records.

Establish approved management and residency status

• If the business will be managed by a person other than the licence holder or the licence holder is a body corporate, nominate a resident natural person as manager and seek Director approval in line with s 11(1). Maintain continuity of approved management to avoid breaching s 11(2) which renders failure to have an approved manager for more than 14 days an offence.

Registered premises and display obligations

• Apply to register premises with the Director in the prescribed form (s 16(2)). Ensure that business is carried on only at those registered premises unless the Director permits specified alternative locations for specified periods (s 16(3)). At registered premises conspicuously display the agent name as on the licence or an approved registered business name and, where applicable, the manager’s name (s 17). Maintain a conspicuous notice showing the scale of fees chargeable (s 19(1)), and lodge the scale and any changes with the Director as required by regulation (s 19(2)).

Fee structures and dealings with workers and employers

• Do not demand or receive fees from job-seekers merely for being listed or for the agent seeking employment for them except for deposits held under permitted rules (s 20(1)-(2)). If taking deposits, hold them until employment is found, the person ceases to be listed, or an agreement is reached on repayment (s 20(2)(i)-(iii)). Do not charge recurring fees or charge a worker where the agent hires the worker themselves (s 20(3)). Instead, use written agreements that clearly identify fee triggers and amounts and conform to the displayed scale.
• For employers, do not demand or receive a fee for finding or obtaining a worker except where the worker has made contact with the employer or where a written agreement exists between employer and agent (s 21(1)). If taking deposits from employers, apply the same holding and application rules as for workers or otherwise as agreed in the written contract (s 21(2)). Ensure fees charged to employers do not exceed the displayed scale applicable to the particular case (s 21(3)). Keep written agreements that evidence the employer’s consent to the fee.

Documentation and prescribed statements

• When procuring employment for a person, provide the prescribed statement in the prescribed form containing employer identity and address, first attendance location, workers compensation coverage and insurer details, taxation arrangements, award name, superannuation entitlements, paid leave accrual details and expense reimbursement arrangements (s 20(4)). Keep copies or records evidencing that the statement was given to the person, because inspectors may demand production of these records (s 23(1)(b)). Ensure the statement is accurate; s 26 makes it an offence to furnish false or misleading information.

Record-keeping and retention systems

• Implement a records system meeting s 22(1) requirements: record each client’s name, deposit details, prescribed information about employment arranged, details of fees paid in connection with hiring or engagement, and any other prescribed information. Maintain additional prescribed records, accounts and documents (s 22(2)). Keep the required records on the registered premises for one year after making (s 22(3)). Consider structured document management systems retaining originals or reliable electronic reproductions at the registered premises to meet testing by inspectors.

Interaction with inspectors and privacy safeguards

• Develop protocols for inspectors’ requests consistent with s 23: permit entry at reasonable times, produce records and licences when lawfully required, and provide assistance and facilities to inspectors (s 23(1)(a)-(f); s 23(3)). Train staff on the limited but important self-incrimination protection in s 23(5): persons need not answer or produce documents that would tend to incriminate them, but refusal to answer otherwise without reasonable excuse may itself be an offence (s 23(4)). Obtain legal advice before asserting the self-incrimination protection during an inspection to balance cooperation with legal protection.

Licence conditions and ongoing compliance

• Recognise that licences are subject to regulatory and Director-imposed conditions (s 10(1)). Keep under review any licence conditions imposed at grant or varied during currency. If conditions are imposed in writing, ensure they are recorded and operationalised; a breach of a condition is an offence (s 10(4)). For renewals, apply in writing in the Minister-approved form not less than the prescribed number of days before expiry and pay the prescribed fee (s 9(1)-(2)). If renewing late, seek Director discretion and pay prescribed late application fees where applicable (s 9(3)).

Transfers, surrender and change management

• For transfers of licences, apply in the Minister-determined form and pay prescribed fee, and provide further information if required (s 12(1)-(3)). The Director must transfer the licence if satisfied that the transferee would be suitable to be granted a licence (s 12(4)). Where surrendering a licence, follow the statutory process to ensure the licence ceases to operate without creating liability. Where circumstances change,changes in control, management, or premises,promptly notify the Director and seek approvals to avoid contravening condition and registration provisions.

Regulatory compliance and monitoring

• Regularly review applicable regulations made under s 30 since many compliance particulars,forms, prescribed information, display rules, fee scales and prescribed penalties for regulations,will be set out there. Ensure staff and process manuals reflect current regulations and any Gazetted Ministerial exemptions under s 4. Monitor the Director’s practice regarding licence conditions, cancellations and exercise of discretion to anticipate regulatory expectations.

Prosecutions, limitation periods and review rights

• Be aware that prosecutions must be commenced within three years of the alleged offence (s 28(1)) and ordinarily only the Director or an inspector may commence prosecutions except with the Minister’s consent (s 28(2)). If facing an adverse Director decision, note the 28 day Tribunal review period under s 15(2) and the availability of orders to keep licences in force during review where related to refusal to renew, to transfer or to cancel (s 15(3)). Preserve evidence and administrative records to support submissions in pre-cancellation processes where the Director must give at least 28 days to make submissions (s 13(2)).

Documentary and evidentiary housekeeping

• Keep copies of all licences, notices, fee scales and staff approvals at registered premises and have digital backups. Given that the Act permits apparently genuine certificates of Ministerial consent and Director delegations to be accepted as proof absent contrary evidence (ss 28(3), 29(3)), maintain tight control over official correspondence and certificates to avoid evidential disputes.

Practical summary checklist

1. Confirm whether the business activity falls within the statutory definition of employment agent (s 3).
2. Consult the regulations to see if a statutory exclusion or exemption applies.
3. Prepare the Minister-approved application form with references and prescribed fee, and plan advertisement and objection response (s 7).
4. Nominate and secure Director approval for a resident manager if required (s 11).
5. Register premises and prepare conspicuous display of licence, manager name and fee scale (ss 16-19).
6. Design and implement compliant fee structures and deposit handling aligned with ss 20-21.
7. Set up records systems to meet s 22 and retain records on premises for one year.
8. Train staff on inspection procedures and legal rights under s 23.
9. Maintain an ongoing regulatory compliance calendar for licence renewal deadlines and fee payments (s 9).
10. Keep abreast of regulations and Ministerial exemptions under s 30.

Following these steps aligns operations with the statutory obligations and reduces risk of administrative or criminal penalties under the Act.