Land Agents Act 1994

The Act defines and organises a set of core legal concepts that govern who must be regulated, how trust money is treated, and how mismanagement or wrongdoing is addressed.

• Agent and related categories: “Agent” is a business that sells, purchases or otherwise deals with land or businesses, whether for others or on its own behalf (s 4(1)). The Act excludes legal practitioners acting in practice, persons dealing through an agent, and mortgage financing from being “agents” for some purposes (s 4(2)), though mortgage financiers are subject to transitional provisions in Schedule 2 and to specific application of Pt 3 Div 3 there (Schedule 2 cl 3-4). Sales representative, property manager and auctioneer are separately defined or created (s 3; ss 6A, 6AB, 6B) and have tailored registration paths (ss 8A, 8BA, 8C).

• Registration and entitlement: Registration is mandatory to hold out as an agent (s 6(1)) and for sales representatives, property managers and auctioneers subject to the rules in ss 6A, 6AB, 6B. Entitlement tests for registration require qualifications as prescribed or approved by the Commissioner, absence of specified dishonesty convictions within stated time windows, fitness to practise, and, for corporate applicants, that directors meet similar requirements (ss 8, 8A, 8BA, 8C). The Commissioner may require photographs and identity information (s 7(2a); s 8E).

• Trust money and trust accounts: Trust money is defined as money received by an agent when acting as an agent to which the agent is not wholly entitled (s 12(1)). Trust money must be deposited as soon as practicable into an ADI account approved by the Commissioner (s 13(1)), cannot be mixed with non‑trust money, and withdrawals are limited to specified purposes (s 14). Interest that ADIs pay on trust accounts must be remitted to the Commissioner (s 15). The Act criminalises defalcation, misappropriation or misapplication of trust money by those handling it and sets high maximum penalties for such misconduct (s 13(3)).

• Intervention and oversight: Where reasonable grounds exist (e.g. fiduciary default, irregular operations, insolvency), the Commissioner may appoint an administrator to manage an agent’s trust account (s 16), may appoint a temporary manager (s 17), and may appoint examiners to inspect accounts and auditor working papers (s 23). Administrators and examiners have document‑production, entry and enforcement powers (ss 18, 24); ADIs must comply with administrators (s 16(5)) and report deficiencies (s 25).

• Indemnity fund and compensation: The Commissioner maintains an indemnity fund (s 29). Claims are allowed where a person suffered pecuniary loss due to a fiduciary default (s 30). The fund’s composition, permitted uses (including paying claims, costs of investigation and disciplinary proceedings), claim procedures, subrogation rights and the Commissioner’s discretions about requiring claimants to pursue recoveries are set out (ss 29-40). The fund is notionally divided under s 29A into Part A (general) and Part B (Growden scheme), with Schedule 2A operating a time‑limited compensation framework for Growden investors.

• Discipline and Tribunal process: The Tribunal (as defined in s 3 and adjusted by later amendments) hears complaints (s 44), may investigate and hear matters (s 45), may sit with assessors (s 46), and may take disciplinary action where proper cause exists (s 47). Penalties include reprimands, fines, conditions, suspension, cancellation, disqualification and prohibitions on employment and directorships (s 47). Certain convictions trigger mandatory cancellation and disqualification unless exceptional circumstances exist (s 47(1a)).

• Delegation, agreements and exemptions: The Commissioner may delegate powers to public servants or make agreements with industry organisations, subject to limitations on delegable functions (s 49-50). The Minister may grant exemptions from provisions of the Act, subject to conditions and Gazette notification (s 51).

These concepts structure who is regulated, how funds received in the course of agency activity are isolated and audited, how emergencies are handled administratively, and how compensation and discipline are processed. The Act combines administrative discretion (Commissioner powers re registration, conditions, administrators and indemnity payments) with statutory procedural safeguards (written notices, rights to seek Tribunal review, time limits for review or claim processes: ss 7(4-5), 8D, 11BA(4-7), 11C(4-7), 32, 35).

The Act directly affects a set of identifiable groups and indirectly affects others who interact with them. The statute names who must register, who may be sanctioned, who pays for compliance and who can claim under the indemnity fund.

• Registered persons: Natural persons and bodies corporate carrying on land‑agency businesses are required to be registered as agents (s 6(1)), and must pay annual fees and lodge returns (s 9(2)). Sales representatives, property managers and auctioneers must be registered under the prescribed categories (ss 6A, 6AB, 6B). Incorporated agents must ensure management and supervision by a natural‑person registered agent (s 10). Persons carrying registration cards must carry and produce them when acting in the role (s 11B).

• Employers and principals (agents): Agents who engage sales representatives or property managers bear a compliance burden; they must not engage persons to perform those functions unless those persons are appropriately registered or employed as employees under contracts of service (ss 6A(3), 6AB(3)). Agents must ensure proper management and supervision of each place of business by a registered agent or other nominated natural person (ss 10-11), and must maintain auditable trust accounts and keep records for at least five years (ss 21-22).

• Clients, tenants and purchasers: Persons who instruct agents, or whose funds are received as trust money, have protections and remedies under the Act. They can require receipts and access statements of dealings with trust money (s 21(2-3)) and may be eligible claimants for indemnity fund compensation where they suffer pecuniary loss from fiduciary default (s 30).

• Auditors, administrators and examiners: Registered company auditors and persons meeting regulatory requirements may be engaged to audit trust accounts (s 12(1) definition of auditor; s 22). The Commissioner may appoint administrators, temporary managers and examiners who may enter business premises, require documents and take possession of records (ss 16-19, 23).

• ADIs and financial institutions: ADIs with agent trust accounts are required to comply with administrator directions (s 16(5)), must report deficiencies within 14 days (s 25) and remit interest on trust money to the Commissioner (s 15). ADIs are protected from notice of trust being binding on them except for negligence (s 27).

• Commissioners, Tribunal and Minister: The Commissioner for Consumer Affairs administers the Act (s 5), has broad discretionary powers over registration, supervision, intervention, fund administration and prosecutions (multiple provisions). The Minister can direct the Commissioner and may grant exemptions (s 5, s 51). The Tribunal exercises review and disciplinary functions (ss 8D, 11BA(4), 11C(4), 32(2), 35).

• Insurers and other recovery targets: Where the Commissioner pays claims, the Commissioner is subrogated to claimants’ rights against persons liable for the fiduciary default (s 38). The Commissioner may also insure the indemnity fund at the Commissioner’s discretion (s 39).

• Growden investors (Schedule 2A): A specific cohort of persons who invested with G.C. Growden Pty Ltd and suffered losses because of fiduciary default are eligible for a special compensation scheme funded from a separate Part B of the indemnity fund (Schedule 2A). That cohort is time‑limited by the prescribed period and the Schedule’s expiry mechanics (Schedule 2A cls 1-9).

Who pays: registered persons pay annual fees and registration fees as fixed by regulation (s 7(1)(b), s 9(2)). ADIs pay interest on trust accounts to the Commissioner, and the indemnity fund bears costs for investigation, disciplinary proceedings and compensation payments (s 29(3)-(4)). Persons who misappropriate trust money can be prosecuted and face fines or imprisonment (s 13(3)); the cost of insurance for the indemnity fund may be paid from the fund (s 39(2)). Where the indemnity fund pays, the Commissioner recovers amounts from other liable persons under subrogation (s 38) and may require claimant cooperation in recoveries (s 32(3)(c)).

Indirect effects include potential administrative costs to employers who must ensure staff registration, training, supervision and compliance with audit regimes; reputational and commercial consequences of Tribunal disciplinary orders being recorded on the register (s 52); and operational constraints on agents around trust‑account handling, advertising (s 48A) and business structures (ss 10-11). The Act thereby reaches employers, employees, financial institutions, claimants damaged by fiduciary defaults and the public that relies on regulated real‑estate services.

The Act sets out statutory duties on agents, sales representatives, property managers, ADIs and the Commissioner, and also affords specific rights to applicants, registrants and claimants.

Key duties

• Registration and authorisation duties: Persons must be registered to carry on business as an agent (s 6(1)). Sales representatives, property managers and auctioneers must be registered or employed as employees under contracts of service (ss 6A(1), 6AB(1), 6B(1)). Agents must not claim commission unless registered and authorised in writing by the principal at the time of rendering services (s 6(2)).

• Trust‑account duties: Any person receiving trust money must promptly deposit it into an approved ADI trust account in the agent’s name (s 13(1)). Persons authorised to deal with trust accounts must not pay non‑trust money into them, or withdraw except as permitted by Pt 3 Div 2 (s 13(2)). Defalcation or misappropriation is an offence (s 13(3)). Agents must keep detailed, audit‑compliant records and make receipts available in prescribed form (s 21(1)-(2)); statements of dealings must be provided at request to interested persons (s 21(3)); records must be retained for at least five years (s 21(4)). Audits must be performed by qualified auditors and audit statements lodged with the Commissioner (s 22(1)).

• Management and supervision duties: Incorporated agents must ensure the business is properly managed and supervised by a registered natural‑person agent (s 10). Each place of business must be managed and supervised by a registered agent or nominated natural person in accordance with regulations (s 11). Employers of persons registered under conditional training/supervision registrations must ensure proper supervision (ss 8B(3), 8BB(3)).

• Cooperation with administrators and examiners: Persons must not withdraw or deal with trust funds after notice of appointment of an administrator or temporary manager (s 16(4)); ADIs must not accept withdrawals without administrator approval (s 16(5)). Administrators, temporary managers, auditors and examiners can require production of documents and the person must not obstruct those functions (ss 18, 24, 28).

• Notification and reporting obligations: ADIs must report deficiencies in trust accounts within 14 days (s 25). Registered persons must pay annual fees and lodge returns by the regulatory date (s 9(2)) and must notify the Commissioner of their address for service (s 63).

Key rights

• Entitlement to registration: Natural and corporate applicants meeting the qualification, character and fitness tests are entitled to registration (ss 8, 8A, 8BA, 8C). A person who lacks qualifications may be granted conditional registration subject to training and supervision (ss 8B, 8BB).

• Procedural rights in adverse decisions: Applicants refused registration, persons whose registration is suspended or subject to urgent conditions, and people affected by appointments of administrators or temporary managers have rights to seek review by the Tribunal (ss 8D, 11BA(4), 16(2), 11C(4), 20(1)). The Commissioner must provide written reasons on request (ss 8D(3), 11BA(6), 11C(6)).

• Rights relating to indemnity fund claims: Persons suffering pecuniary loss from fiduciary default may claim compensation (s 30). The Commissioner must give notice to claimant and agent, allow submissions, and inform claimant of progress and determinations (s 32(2), 32(5)). Claimants may seek Tribunal review of determinations (s 35).

• Evidential and procedural presumptions: Certificates by the Commissioner as to registration status or appointment matters constitute prima facie evidence in proceedings (s 62). Admissions and confessions may be accepted as evidence of a fiduciary default even in the absence of the confessor (s 36(2)(a)); factual questions are decided on the balance of probabilities (s 36(2)(b)).

• Subrogation and recovery: When the Commissioner pays compensation, the Commissioner is subrogated to the claimant’s rights against liable persons to the extent of payment (s 38(1)), giving the Commissioner recovery rights to replenish the fund.

Other duties and rights: The Commissioner must maintain accounts and allow the Auditor‑General to audit the indemnity fund at least annually (s 41). The Minister must have copies of certain agreements laid before Parliament (s 50(5)) and may make regulations specifying codes of conduct, fee structures and further procedural detail (s 65).

Compliance burdens and administrative choices arise from these duties: registered entities fund audits, maintain records, lodge returns and pay fees, and bear the legal and operational costs when administrators are appointed or when disciplinary actions are taken. Rights of review provide procedural checks on Commissioner decisions, but the Act vests broad discretionary powers in the Commissioner to impose conditions, appoint administrators, and determine compensation and investigations.

The Act sets a layered enforcement architecture combining civil administrative sanctions (registration conditions, suspensions, cancellations, Tribunals orders), criminal offences with specified maximum penalties (fines and imprisonment), regulatory monetary penalties via regulation, and remedial administrative interventions (administrators, temporary managers, and indemnity fund payments). The Commissioner, authorised officers and the Tribunal are central to enforcement.

Criminal and monetary penalties (selected provisions)

• Unregistered agency activity: Carrying on business or holding out as an agent without registration is an offence under s 6(1). Maximum penalties are tiered: for natural persons, $50 000 for first or second offence, and for a third or subsequent offence $50 000 or 12 months imprisonment or both; for bodies corporate, $250 000 (s 6(1)).

• Registration card: A natural person who fails to carry and produce the registration card while performing functions is liable to a maximum penalty of $1 250 and an expiation fee of $160 (s 11B).

• Sales representatives/property managers auctioneers engaging/acting without registration: s 6A, 6AB and 6B prescribe maximum penalties of $20 000 for unregistered sales representatives and property managers, $5 000 for unregistered auctioneers conducting auctions in some circumstances and $20 000 for agents engaging unregistered auctioneers (ss 6A, 6AB, 6B).

• Trust‑account offences: An agent or person handling trust money must not cause defalcation, misappropriation or misapplication of trust money (s 13(3)). Maximum penalties are severe: for natural persons $100 000 or 5 years imprisonment or both; for bodies corporate $250 000 (s 13(3)). Failures to comply with record keeping, audits and related obligations are penalty offences up to $20 000 (ss 21(1), 22(3) etc).

• False or misleading information: A person must not provide materially false or misleading information in material provided under the Act; where made knowingly the maximum penalty is $10 000; otherwise $2 500 (s 54).

• Contravention of Tribunal orders and prohibitions: Contravening or failing to comply with Tribunal conditions is an offence with maximum penalties of $35 000 or imprisonment for 6 months; persons employed or engaging in agent business in contravention of Tribunal orders similarly face maximum penalties (s 48).

• Continuing offences: A person convicted of an offence for conduct that continues is liable to additional daily penalties up to one‑tenth of the offence’s maximum per day (s 60).

Enforcement and procedural architecture

• Prosecutions: Prosecutions for offences under the Act may be commenced only by the Commissioner, an authorised officer under the Fair Trading Act 1987, or a person with the Minister’s consent (s 61(2)). Time limits for commencing proceedings are prescribed (s 61(1)).

• Administrative enforcement: The Commissioner may suspend, cancel or impose conditions on registrations (s 11C). In urgent circumstances the Commissioner may immediately suspend registration or impose conditions if there are reasonable grounds and danger of significant harm (s 11BA). These administrative actions are reviewable by the Tribunal (ss 11BA(4), 11C(4)) and the Commissioner must provide written reasons if required (ss 11BA(6), 11C(6)).

• Tribunal discipline and orders: Complaints may be lodged with the Tribunal (s 44). The Tribunal, on balance of probabilities, may impose reprimands, fines up to $20 000, conditions, suspensions, cancellations, disqualifications and prohibitions on employment and directorship (s 47). Certain convictions (prescribed offences) lead to mandatory cancellation and disqualification unless the Tribunal makes an exception (s 47(1a)).

• Emergency administrative intervention: Where reasonable grounds exist to suspect fiduciary default, improper conduct or insolvency, the Commissioner may appoint administrators and temporary managers to control trust accounts and transact urgent business; ADIs must not accept withdrawals without administrator direction (ss 16-17, 16(5)). Administrators and examiners can require documents and enter premises (ss 18, 23).

• Indemnity fund as remedial enforcement: Payments from the indemnity fund compensate victims of fiduciary default (ss 29-37). When the Commissioner pays compensation, the Commissioner is subrogated to claimants’ rights against liable persons (s 38), enabling recovery actions and possible further enforcement.

Evidentiary and administrative aids

• Certificates by the Commissioner are prima facie proof of registration status and appointment matters (s 62), and the Commissioner’s internal accounts and annual reports are subject to Auditor‑General audit (s 41).

• ADIs are required to report account deficiencies (s 25); auditors and examiners have statutory production powers to support enforcement (ss 22, 23, 24).

Who enforces and how decisions can be challenged

• The Commissioner is the primary enforcer: registration decisions, appointments of administrators and scope of interventions, indemnity fund determinations, and commencement of prosecutions are taken by or through the Commissioner (ss 5, 16, 29, 61). The Tribunal provides review and disciplinary adjudication and may hear complaints lodged by the Commissioner or third parties (ss 44-47). Rights of review to the Tribunal are available for registration refusals (s 8D), urgent suspensions/conditions (s 11BA(4-7)), standard cancellations/suspensions/conditions (s 11C(4-7)), and indemnity fund determinations (s 35).

The enforcement regime combines criminal deterrence with administrative controls designed to protect trust money and compensate victims, while providing review rights to the Tribunal and procedural safeguards such as notice and opportunity to be heard (s 32(2)).

The Act is framed to operate alongside other South Australian and Commonwealth laws; it expressly cross‑references and delegates certain interactions, preserves prior authorisations and transitional arrangements, and provides mechanisms to co‑operate with police, ADIs and other regulatory instruments.

Key cross‑references and exclusions

• Fair Trading Act 1987: The Act recognises “authorised officers” under the Fair Trading Act 1987 (s 3 definition) and allows the Commissioner to accept assurances under that Act as relevant conduct (s 43(1)(b)). Delegation powers may be exercised under agreements between the Commissioner and organisations, and those agreements may include delegations of powers under the Fair Trading Act 1987 (s 50(2)(b)).

• South Australian Civil and Administrative Tribunal Act 2013: The Tribunal defined in s 3 is the South Australian Civil and Administrative Tribunal. The Act specifically provides rights of review under section 34 of that Tribunal Act for registration refusals, administrative actions, and indemnity fund determinations (ss 8D(1), 11BA(4), 11C(4), 35(1)). Transitional amendments (Statutes Amendment (SACAT No 2) Act 2017) updated appeals to the Tribunal (Schedules and provisions noted in legislative history).

• Corporations Act 2001 (Cth): “Insolvent under administration” and definition references adopt meanings from the Corporations Act 2001 (s 8(1)(d) and other clauses). The Act uses the Corporations Act framework to assess corporate eligibility (s 8(2)(a)(ii), (b)) and directors' prior conduct relevant to winding up (s 8(1)(e), s 8(2)(b)(iii)).

• Legal Practitioners Act 1981: “Legal practitioner” is defined with reference to the Legal Practitioners Act 1981 (s 3 definition), and the Act excludes legal practitioners from acting as agents while practising as lawyers (s 4(2)(a)).

• Conveyancers Act 1994: Schedule 2A and the definition of qualifying capital investments exclude certain trust monies that fall under the Conveyancers Act 1994 (Schedule 2A cls 1(1) and 3(3)).

• Unclaimed Moneys Act 1891: The Act allows trust account money to be dealt with in accordance with the Unclaimed Moneys Act 1891 (s 14(e)).

• Summary Procedure Act 1921 and criminal procedure: Time limits for expiable offences are governed by the Summary Procedure Act 1921 where relevant (s 61(1)(a)).

Mechanisms for cooperation and delegation

• Police investigations: The Commissioner may request the Commissioner of Police to investigate and report on matters relevant to applications or disciplinary actions (s 56), creating a procedural bridge between administrative regulation and criminal investigations.

• ADIs and financial sector laws: The Act requires ADIs to report deficiencies (s 25) and to pay interest to the Commissioner (s 15). Amendments and legislative history show interaction with Commonwealth financial sector reform (Financial Sector Reform (South Australia) Act 1999) transferring certain regulator roles to ADIs or aligning definitions (legislative history entries).

• Auditor‑General and public audit: The Auditor‑General may audit the indemnity fund accounts at any time and must audit at least annually (s 41), linking the fund to public audit oversight.

• Regulatory instruments and codes: The Governor may make regulations that require compliance with a code of conduct, set maximum commission rates and fees, and exempt classes of persons (s 65). Regulations may operate by reference to specified codes and may leave determinations to Commissioner or Minister discretion (s 65(3)).

Transitional and saving provisions

• The Act replaced the Land Agents, Brokers and Valuers Act 1973 and preserves continuity by treating existing licences, approvals and appointments as registrations or approvals under the new Act (Schedule 2 cl 2(1)-(4)). Historical versions and the legislative history list numerous amendments that interact with other statutes and reassign adjudicative bodies (e.g. moving appeals to SACAT).

• Mortgage financiers: Schedule 2 contains transitional provisions that apply Pt 3 Div 3 to mortgage financiers for specified trust money and empowers the Governor to make regulations addressing mortgage financier information disclosure (Schedule 2 cl 3-5).

Limits and interpretive interaction

• The Act does not operate in isolation; where persons are subject to other laws (e.g. criminal provisions, Corporations Act duties), those laws can influence registration eligibility, disciplinary outcomes, and recovery rights. For example, a person disqualified under another law from practising is ineligible for registration (s 8(1)(c)), and convictions of dishonesty under other jurisdictions are relevant (ss 8(1)(b), 8(2)(b)).

• The Commissioner’s powers to delegate and to make agreements with industry organisations are qualified: key functions cannot be delegated for such agreements, including functions under Part 2 and certain fund and appointment decisions (s 50(3)). The Minister must table copies of agreements in Parliament (s 50(5)), connecting administrative arrangements with parliamentary oversight.

In sum, the Act is designed to sit within a network of administrative, criminal and corporate laws. It supplies specific cross‑references (e.g. to Tribunal review, Corporations Act definitions, Fair Trading Act authorised officers) and contains mechanisms for cooperation (police investigations, ADI reporting), while preserving particular administrative powers and limitations that reflect the interface with other legislation.

The legislative history appended to the Act documents numerous amendments altering registration categories, administrative mechanisms, disciplinary processes and scope. The Act as printed includes a chronological table of amendments and notes where sections were added, substituted, amended, or repealed. The key amendment themes and their mechanical effects are as follows.

Principal Act and initial commencement

• The Land Agents Act 1994 was assented on 15 December 1994 and commenced on 1 June 1995 (legislative history). It repealed the Land Agents, Brokers and Valuers Act 1973 and preserved continuity through Schedule 2 transitional provisions.

Notable amendment waves

• 1995-1999 early amendments: The Statutes Amendment (Sunday Auctions and Indemnity Fund) Act 1995 and subsequent amendments validated historic payments from the indemnity fund and introduced Sunday auctions provisions. The Financial Sector Reform (South Australia) Act 1999 and related Commonwealth financial sector amendments affected definitions and interactions with financial institutions (legislative history entries for 1995, 1999).

• 2000-2004: Amendments clarified administrative arrangements and added specific schedules. The 2004 Land Agents (Indemnity Fund-Growden Default) Amendment Act 2004 inserted Schedule 2A and s 29A, creating a two‑part indemnity fund and a special compensation scheme for Growden investors (s 29A inserted by 29/2004 s 4, Schedule 2A inserted by 29/2004 s 7; both commenced 1.9.2004). Schedule 2A created a ring‑fenced Part B (initial credit $13.5m) and a scheme for Growden claimants (Schedule 2A cls 1-9).

• 2007 reform package: The Real Estate Industry Reform amendments (Statutes Amendment (Real Estate Industry Reform) Act 2007) substituted and inserted many modern regulatory concepts: registered agent definitions, registration of sales representatives and auctioneers (ss 6A, 6B, 8A, 8C), audit and examiner provisions, and registration card/photo requirements (e.g. ss 7(2a), s 22). These amendments commenced in 2008 (s 10 etc). The legislative history records numerous substitutions around 28.7.2008.

• 2013-2015: The Acts Amendment (Directors’ Liability) Act 2013 and other amendments adjusted disciplinary powers, added mandatory cancellation for prescribed offences in some circumstances (s 47(1a) inserted by 17/2013 s 6(2) and then amended), and the Occupational Licensing Act 2013 introduced further modifications to registration and audit timeframes (entries for 2013, 2014, 2015).

• 2017-2019: The Land Agents (Registration of Property Managers and Other Matters) Amendment Act 2017 (assented 31.10.2017) introduced “property manager” as a defined and registrable category (s 3 definitions and new ss 6AB, 8BA, 8BB), and inserted Part 2AA for urgent suspensions (s 11BA) with later amendments adjusting review timelines (s 11BA(4-7) substituted by 51/2017). Many of these provisions commenced in 2018-2019 (s 30.4.2018 and ss 1.2.2019 references in the legislative history).

• 2017-2018 tribunal transition: The Statutes Amendment (SACAT No 2) Act 2017 and related entries in 2017-2018 transferred appellate and disciplinary jurisdiction to the South Australian Civil and Administrative Tribunal (SACAT/Tribunal) and updated review pathways to reflect the Tribunal’s creation (entries for 2017 Pt 25 and legislative history substitutions in 2018).

Mechanical effects of amendment themes

• Expansion of registrable categories: From a single “agent” registration the Act now separately regulates sales representatives, auctioneers and property managers with tailored pathways for conditional registration, training/supervision conditions and employer supervisory responsibilities (ss 6A, 6B, 6AB; ss 8B, 8BB).

• Strengthened trust‑account oversight: Amendments increased ADI reporting duties (s 25), authorised examiner powers (s 23), clarified audit periodicity and exceptions (s 22, s 22(1a) inserted), and expanded administrators’ statutory tools (ss 16-19 updates).

• Indemnity fund structure: The 2004 insertion of s 29A and Schedule 2A created a two‑part fund architecture, ring‑fenced Part B for Growden investor claims and allowing Part A to serve general purposes (s 29A).

• Administrative urgency and review: Part 2AA (s 11BA) introduced immediate suspension powers in urgent circumstances with statutory review rights to the Tribunal and procedures for termination of conditions or suspension, refinements occurring in 2018-2019.

• Tribunal procedural updating: Jurisdictional and procedural changes transferred certain functions from courts to the Tribunal and updated assessor panels, hearing powers and appeal periods (ss 44-47 and legislative history reflecting substitution by 51/2017 s 125-137).

Schedule and expiry mechanics

• Schedule 2A contains internal expiry mechanics: s 29A expires when Schedule 2A expires; Schedule 2A itself must expire by proclamation after the Commissioner certifies all eligible capital losses have been compensated (Schedule 2A cl 9). The legislative history notes Schedule 2A insertion in 2004 and expiry conditions thereafter.

The legislative history section at the end of the Act provides a detailed map of prior reprints and amendments; any compliance or advisory work should consult that timeline to identify the operative version at a given date and to track transitional obligations created by amendment.

The supplied text contains no case law or judicial decisions; it records only procedural mechanisms for review and Tribunal jurisdiction. The Act provides multiple internal review and appeal routes but the source does not list any litigation or reported decisions interpreting the Act.

Statutory routes to adjudication and review

• Tribunal review: The Act channels many disputes to the South Australian Civil and Administrative Tribunal (Tribunal) by reference to section 34 of the Tribunal Act 2013 for reviews of registration refusals (s 8D(1)), urgent suspensions and conditions (s 11BA(4)), cancellations/suspensions/conditions under Part 2A (s 11C(4)), and indemnity fund determinations (s 35(1)). The Act prescribes review time limits (typically one month for registration and administrative decisions under ss 8D(2), 11BA(5), 11C(5); three months for indemnity fund determinations under s 35(1a)).

• Tribunal disciplinary hearings: Complaints may be lodged directly with the Tribunal by the Commissioner or any other person (s 44). The Tribunal has powers to hear complaints, admit modifications or additional allegations (s 45), sit with assessors (s 46) and make orders including fines and disqualifications (s 47). The Act allows the Tribunal to accept evidence on a balance of probabilities (s 47(1)) and provides for evidential presumptions like Commissioner certificates (s 62).

Absence of reported decisions in text

• The Act includes no named cases, no judgments, and no summaries of litigation outcomes. The legislative history records administrative reassignments and amendments affecting tribunal and court venues, but does not record judicial interpretation. The text does not provide examples of Tribunal orders or prosecutorial outcomes.

Implications for practitioners

• Because the Act relies heavily on Tribunal adjudication and Commissioner discretion, the practical litigation landscape would be shaped by SACAT decisions, administrative review decisions and criminal prosecutions by the Commissioner. The Act establishes procedural timelines, review rights and evidential shortcuts (e.g. Commissioner certificates), which shape litigation strategy but the source provides no concrete litigation precedents.

• Where Tribunal review rights are invoked, the Act specifies statutory time limits for filing and procedural prerequisites such as written reasons from the Commissioner on request (ss 8D(3), 11BA(6), 11C(6), 32(2)). These procedural provisions will be significant in any litigation; however, practitioners must consult external decisions to see how SACAT applies standards like “fit and proper person” (s 8(1)(f)) or the threshold for appointing administrators (s 16(1)).

In short, the Act furnishes a statutory litigation architecture (Tribunal reviews, disciplinary hearings, criminal prosecutions) but the supplied text contains no litigation history or case law. Practitioners must rely on Tribunal and court databases for the interpretive and precedent material not present in the Act itself.

The Act contains a number of specific traps and operational details that can catch practitioners and regulated entities if overlooked. The following items are drawn directly from the statutory text and represent operational risks, timing issues, or compliance fault‑lines.

• Registration as a gatekeeper to remuneration: If a person is required to be registered and is not, they are not entitled to commission or consideration for services rendered (s 6(2)). Commission paid to an unentitled person may be recovered as a debt (s 6(3)). Practically, this means that work performed by unregistered staff or contractors can create financial exposure to be sued for recovery of monies paid.

• Employee vs contractor distinction matters for registration: Sales representatives and property managers may be registered as sales representatives or property managers and act as employees under a contract of service (ss 6A(1)(b), 6AB(1)(b)). Agents must not engage others to perform these functions unless the other person is a registered agent or a registered sales representative/property manager employed under contract of service (ss 6A(3), 6AB(3)). Misclassification of employment could therefore expose agencies to penalties.

• Photographs and identity requirements: The Commissioner may require natural‑person applicants to attend for a photograph or supply photographs (s 7(2a)), and later may require photographs and annual identity evidence not more than once a year (s 8E). Failure to comply can lead to application refusal (s 7(5)) or cancellation under related provisions, so administrative tracking of renewal notices is essential.

• Annual fee and return deadline consequences: Failure to pay the annual fee or lodge the return when due permits the Commissioner to give 28 days’ notice to make good a default, and failure to comply results in cancellation of registration (s 9(2)-(5)). Registration cancellation may lead to prohibition on receiving commission (s 6(2)) and other downstream consequences.

• Trust money deposit timing and ADI approvals: Trust money must be deposited “as soon as practicable” into a Commissioner‑approved account at an ADI (s 13(1)). The Commissioner can approve classes of accounts and vary approval (s 13(4)), so agents must ensure that their ADI accounts comply with any Commissioner approvals or face penalties up to $20 000 (s 13(1) & (2)).

• ADI deficiency reporting: ADIs must report deficiencies in trust accounts within 14 days of becoming aware (s 25). This puts an onus on ADIs’ internal monitoring systems; agents may face immediate scrutiny following such reports and administrators may be appointed (s 16).

• Administrators’ powers and entry: Administrators may take possession of documents and enter business premises using reasonable force (s 18(c)). The appointment is for up to 12 months unless earlier terminated; the agent has 28 days to seek review (s 19(1), s 20(1)). Agents should treat notices of appointment as exigent interventions.

• Criminal liability for fiduciary default: The Act creates severe criminal exposure for defalcation or misapplication of trust money (s 13(3)), including imprisonment for natural persons. This is a high‑stakes statutory offence with no partial administrative substitution.

• Indemnity fund limits and proportionate reductions: Claimants are entitled to compensation as determined, but where the indemnity fund is insufficient, the Commissioner must make proportionate reductions (s 40(1)). The Commissioner may also defer payments to await other claims’ determinations (s 40(2)). Claimants therefore may not recover full losses and should be prepared for staged or reduced payments.

• Subrogation and recovery obligations: Upon payment, the Commissioner is subrogated to claimants’ rights (s 38); claimants may be required to give contractual undertakings to assist recovery actions (s 32(3)(c)). Failure to notify recoveries to the Commissioner (Schedule 2A cl 7(1)(a)) can attract penalties (Schedule 2A cl 7(2)). Claimants must coordinate with the Commissioner post‑payment.

• Mandatory cancellation for prescribed offences: If a person has been found guilty of a prescribed offence and the circumstances form the subject matter of a complaint, the Tribunal must cancel registration and disqualify the person unless exceptional circumstances are proved (s 47(1a)). This creates a strong automatic consequence for certain offences.

• Registers and public notes: The Commissioner may record on the register convictions of dishonesty, suspensions, insolvency and winding‑up notices (s 52(2a)). These public notes can have reputational and commercial consequences independent of Tribunal orders.

• Regulatory delegation limits: While the Commissioner may delegate many powers, certain functions cannot be delegated in agreements with professional organisations, including Part 2 functions and approvals of ADI account classes, appointment powers and fund functions (s 50(3)). Organisations assuming delegated roles must understand which functions are reserved.

• Time limits and procedural technicalities: Various statutory deadlines for review and claims are tight: registration review applications to Tribunal are generally one month (s 8D(2)), urgent suspensions one month (s 11BA(5)), indemnity fund reviews three months (s 35(1a)), and Schedule 2A claims must be filed within a prescribed period (Schedule 2A cl 3(1)). Missing time limits can foreclose rights.

• Advertising requirement: Agents must include their registration number prefixed by “RLA” in advertisements relating to land or business sales, alongside name or contact details, failing which carries a penalty and expiation fee (s 48A). This is an operational detail likely to be overlooked in marketing collateral.

Each of the above is rooted in a specific provision. Compliance systems should map statutory obligations, train staff on employee vs contractor status, ensure ADI and trust account configurations meet Commissioner approvals, maintain diary systems for renewals and reviews, and establish procedures for cooperating with administrators and the Commissioner in the event of fiduciary issues.

Compliance requires operational policies, record systems, staff training, financial controls, engagement terms and interactions with the Commissioner and ADIs. The Act prescribes both substantive rules and procedural steps; the following is a practical checklist structured against the Act’s major duties.

1. Registration and documentation

• Ensure that any person or body carrying on business as an agent is registered before holding out or carrying on business (s 6(1)). Maintain proof of registration and produce registration cards when persons act as agents, sales representatives or property managers (s 11B).

• For sales representatives, property managers and auctioneers, verify they are either registered or are employed under a contract of service as permitted (ss 6A(1)(b), 6AB(1)(b), 6B(2)). Embed registration checks into onboarding processes; obtain and retain written authorisations to act from principals (s 6(2)(b)).

• Maintain current photographs and identity evidence in compliance with Commissioner notices (s 7(2a), s 8E). Keep records of commissions, authorisations and written agency agreements.

2. Trust account and money handling

• Immediately upon receipt of trust money, deposit the funds into an ADI account in the agent’s name approved by the Commissioner (s 13(1)). Design internal controls to ensure “as soon as practicable” deposit occurs, and include separation of trust and operational funds (s 13(2)(a)).

• Restrict withdrawals to permitted purposes under s 14. Implement two‑signatory controls, reconciliation and ledger procedures to prevent unauthorised withdrawals. Maintain receipts in the form required by regulation and retain copies (s 21(2)).

• Ensure the nominated ADI account is within Commissioner‑approved classes; designate and document account details in the Commissioner’s systems and require ADI acknowledgment where necessary. Monitor and reconcile interest payments on trust accounts, noting interest must be paid by ADIs to the Commissioner (s 15).

3. Records, audits and examiners

• Keep detailed trust ledgers and supporting documentation capable of audit, in legible written form or readily convertible form, for at least five years (s 21(4)). Ensure receipts satisfy the form and information prescribed by regulation (s 21(2)).

• Schedule and budget for audits by qualified auditors in each audit period specified by regulation; lodge audit statements with the Commissioner as required (s 22(1)). If no trust money held in an audit period, lodge the Commissioner‑approved declaration (s 22(1a)).

• Cooperate with examiners and auditors; produce accounts, working papers and documents when required and permit copying (s 24). Assign a compliance liaison to manage requests from administrators, examiners or auditors.

4. Supervision, training and employment arrangements

• Ensure incorporated agents are managed and supervised by a natural‑person registered agent (s 10). For branches or multiple places of business, nominate registered natural persons or Commissioner‑approved nominees for supervision (s 11).

• When employing persons registered under conditional registrations (ss 8B, 8BB), document training plans, supervision arrangements and compliance checks. Follow any regulatory practices specified as constituting proper supervision (s 8B(4), s 8BB(4), s 11A).

• Use clear contracts of service for employees performing sales representative or property manager functions, and avoid misclassification to prevent registration and penalty exposure (ss 6A(1)(b), 6AB(1)(b)).

5. Interaction with the Commissioner and Tribunal processes

• Observe timeframes for fee payments, returns and registrations (s 9). If issued a notice to make good defaults, act promptly within the 28‑day period to avoid cancellation (s 9(3-4)).

• If subject to Commissioner notice for suspension or appointment of an administrator, seek Tribunal review within the statutory window (s 11BA(5), s 20(1)); ensure written requests for reasons are lodged promptly (s 11BA(6), s 11C(6), s 8D(3)). Keep contemporaneous records of Commissioner communications.

• If making or responding to indemnity fund claims, comply with Commissioner information requests, statutory declaration verification and any undertakings required for recovery actions (s 32(1), s 32(1a), s 32(3)(c)).

6. Advertising and public register

• Ensure all advertisements for sale of land or businesses state the agent’s registration number prefixed with “RLA” beside name or contact details to avoid penalty/expiation (s 48A). Periodically review marketing materials for regulatory compliance.

• Monitor the register for any entries affecting your firm or employees (s 52). If a registrant faces external sanctions or convictions, notify the Commissioner where required and prepare to respond to possible register notations (s 52(2a)).

7. Financial risk and indemnity fund considerations

• Understand that indemnity fund compensation is subject to procedural eligibility, limitations and potential proportionate reductions where funds are insufficient (ss 30-31, 40). Maintain contingency plans and professional indemnity insurance where available, while noting the Commissioner may insure the indemnity fund (s 39).

• On payment from the indemnity fund, cooperate with the Commissioner’s subrogation actions and provide assistance in recoveries to facilitate replenishment of the fund (s 38; s 32(3)(c)).

8. Prevention and incident management

• Implement internal fraud prevention: segregation of duties, surprise audits, reconciliation, limiter authorisations for payments from trust accounts and documented workflows for instructing payments. The criminal offence provisions for fiduciary default (s 13(3)) require robust internal controls to mitigate risk.

• Prepare a contingency plan for the event of discovery of fiduciary default or regulator intervention, including legal counsel, notification protocols to the Commissioner, and readiness to provide documents to administrators/examiners (ss 16-19, 23).

9. Delegations, agreements and exemptions

• Where entering agreements with professional organisations for delegated functions, ensure the agreement is in writing, sets conditions, and recognises non‑delegable functions reserved by statute (s 50(1-4), s 50(3)). Obtain Ministerial approval where required and track tabling requirements (s 50(5)).

• If seeking an exemption under s 51, apply to the Minister and comply with conditions; ensure public notice in the Gazette is monitored.

10. Training and regulatory watching

• Keep abreast of regulations made under s 65, particularly those that set qualifications, codes of conduct, fee structures and registration requirements. Regulations may impose additional practice standards and supervisory obligations referenced in ss 8B(4), 8BB(4) and 11A.

• Maintain continuing professional development and record training to demonstrate “fit and proper” character and to satisfy potential Tribunal or Commissioner scrutiny on supervision and competence (s 8(1)(f)).

Operational governance that maps statutory duties to people, processes and systems will materially reduce exposure. Practical steps include appointing a compliance officer, instituting an annual audit and review calendar aligned to regulatory deadlines, documenting supervision and training practices required by conditional registrations, and integrating legal counsel into incident response and Tribunal engagement.