Part 2Registration and management of agent's business

Part 2—Registration and management of agent's business 6—Agents to be registered (1) A person must not carry on business, or hold himself or herself out, as an agent unless registered as an agent under this Act. (a) for an offence committed by a natural person— (i) for a first or second offence—$50 000; or (ii) for a third or subsequent offence—$50 000 or 12 months imprisonment or both; or (b) for an offence committed by a body corporate—$250 000. (2) A person required by this Act to be registered as an agent is not entitled to commission or other consideration for services as an agent unless the person— (a) is, at the time of rendering the services, registered as an agent; and (b) is authorised, in writing, to act as an agent by the person for whom the services are rendered or a person authorised to act on behalf of that person. (3) Any commission or other consideration paid or given to a person who is, under subsection (2), not entitled to it may be recovered from the person as a debt. 6A—Sales representatives to be registered (1) A person must not act as a sales representative for an agent unless the person— (b) is registered as a sales representative under this Act and is acting as an employee engaged by the agent under a contract of service. (2) For the purposes of subsection (1), a person acts as a sales representative for an agent if the person— (a) is or remains in the service of the agent as a sales representative; or (b) holds himself or herself out as a sales representative for the agent; or (c) performs any of the functions of a sales representative on behalf of the agent. (3) An agent must not engage another person to perform any of the functions of a sales representative in the course of the agent's business unless the other person— (b) is registered as a sales representative under this Act and is engaged by the agent as an employee under a contract of service. 6AB—Property managers to be registered (1) A person must not act as a property manager for an agent unless the person— (b) is registered as a sales representative under this Act, is additionally registered as a property manager and is acting as an employee engaged by the agent under a contract of service; or (c) is registered as a property manager under this Act and is acting as an employee engaged by the agent under a contract of service. (2) For the purposes of subsection (1), a person acts as a property manager for an agent if the person— (a) is or remains in the service of the agent as a property manager; or (b) holds himself or herself out as a property manager for the agent; or (c) performs any of the functions of a property manager on behalf of the agent. (3) An agent must not engage another person to perform any of the functions of a property manager in the course of the agent's business unless the other person— (b) is registered as a sales representative under this Act, is additionally registered as a property manager and is engaged by the agent as an employee under a contract of service; or (c) is registered as a property manager under this Act and is engaged by the agent as an employee under a contract of service. 6B—Auctioneers to be registered (1) A person must not conduct an auction in the course of that person's or some other person's business as an agent, or hold himself or herself out as being authorised to conduct such an auction, unless— (a) the person is registered under this Act as an agent and is additionally registered as an auctioneer or is registered as a sales representative and is additionally registered as an auctioneer; or (b) the auction is conducted through the instrumentality of a person who is registered under this Act as an agent and is additionally registered as an auctioneer or is registered as a sales representative and is additionally registered as an auctioneer. Maximum penalty: $5 000. (2) An agent must not engage another person to conduct an auction in the course of the agent's business unless the other person— (a) is registered under this Act as an agent and is additionally registered as an auctioneer; or (b) is registered under this Act as a sales representative and is additionally registered as an auctioneer and is engaged by the agent as an employee under a contract of service. 7—Application for registration (1) An application for registration must— (a) be made to the Commissioner in the manner and form approved by the Commissioner; and (b) be accompanied by the fee fixed by regulation. (2) An applicant for registration must provide the Commissioner with such evidence as the Commissioner thinks appropriate as to the identity, age and address of the applicant and any other information required by the Commissioner for the purposes of determining the application. (2a) Proof of registration granted to a natural person will include a registration card that bears a photograph of the person and has been issued to the person by the Commissioner; consequently the Commissioner may require an applicant for registration who is a natural person— (a) to attend at a specified place for the purpose of having the applicant's photograph taken; or (b) to supply the Commissioner with 1 or more photographs of the applicant as specified by the Commissioner. (3) If an applicant for registration has previously failed to pay a fee or penalty that became payable under this Act, the Commissioner may require the applicant to pay the whole or a specified part of the fee or penalty. (4) The Commissioner may, by notice in writing, require an applicant for registration, within a time fixed by the notice (which may not be less than 28 days after service of the notice), to comply with any requirement under this section to the Commissioner's satisfaction. (5) If the applicant fails to comply with the notice under subsection (4), the Commissioner may, without further notice, refuse the application but keep the fee that accompanied the application. 8—Entitlement to be registered as agent (1) A natural person is entitled to be registered as an agent if the person— (a) has— (ii) subject to the regulations, the qualifications that the Commissioner considers appropriate; and (b) has not— (i) been convicted of an indictable offence of dishonesty; or (ii) during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; and (c) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and (d) is not an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; and (e) has not, during the period of five years preceding the application for registration, been a director of a body corporate wound up for the benefit of creditors— (i) when the body was being so wound up; or (ii) within the period of six months preceding the commencement of the winding up; and (f) is a fit and proper person to be registered as an agent. (2) A body corporate is entitled to be registered as an agent if— (a) the body corporate— (i) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and (ii) is not being wound up and is not under official management or in receivership; and (b) no director of the body corporate— (i) has— (A) been convicted of an indictable offence of dishonesty; or (B) during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; or (ii) is suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; or (iii) has, during the period of five years preceding the application for registration, been a director of a body corporate wound up for the benefit of creditors— (A) when the body was being so wound up; or (B) within the period of six months preceding the commencement of the winding up; and (c) each director of the body corporate is a fit and proper person to be the director of a body that is registered as an agent. 8A—Entitlement to be registered as sales representative A natural person is entitled to be registered as a sales representative if the person— (a) has— (ii) subject to the regulations, the qualifications that the Commissioner considers appropriate; and (b) has not— (i) been convicted of an indictable offence of dishonesty; or (ii) during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; and (c) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and (d) is a fit and proper person to be registered as a sales representative. 8B—Entitlement to be registered as sales representative subject to conditions relating to training and supervision (1) Despite section 8A, a natural person who does not have the qualifications required by that section, but would otherwise be entitled to be registered as a sales representative, is entitled to be registered as a sales representative if— (a) the registration is made subject to conditions considered appropriate by the Commissioner relating to training to be undertaken by the person for the purpose of qualifying for unconditional registration as a sales representative; and (b) the Commissioner does not consider that such registration should be refused because of previous failure by the applicant to comply with a condition referred to in paragraph (a). (2) The Commissioner may, on application by the person and payment of the prescribed fee, or on the Commissioner's own initiative, by written notice, vary or revoke conditions of a person's registration under this section. (3) An agent who employs as a sales representative a person registered under this section must ensure that the person is properly supervised in that employment. Maximum penalty: $10 000. (4) Without limiting the effect of subsection (3), the regulations may provide that a sales representative will not be taken to be properly supervised for the purposes of that subsection unless certain practices specified in the regulations are followed. (5) The Commissioner may, by written notice, cancel the registration of a person registered under this section if the Commissioner is satisfied that the person has, without reasonable excuse, failed to comply with a condition of the registration. 8BA—Entitlement to be registered as property manager A natural person is entitled to be registered as a property manager if— (a) the person is registered as an agent under this Act; or (b) the person— (i) is registered as a sales representative under this Act; and (ii) has— (A) the qualifications required by regulation; or (B) subject to the regulations, the qualifications that the Commissioner considers appropriate; or (c) the person— (i) has— (A) the qualifications required by regulation; or (B) subject to the regulations, the qualifications that the Commissioner considers appropriate; and (ii) has not— (A) been convicted of an indictable offence of dishonesty; or (B) during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; and (iii) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and (iv) is a fit and proper person to be registered as a property manager. 8BB—Entitlement to be registered as property manager subject to conditions relating to training and supervision (1) Despite section 8BA, a natural person who does not have the qualifications required by that section, but would otherwise be entitled to be registered as a property manager, is entitled to be registered as a property manager if— (a) the registration is made subject to conditions considered appropriate by the Commissioner relating to training to be undertaken by the person for the purpose of qualifying for unconditional registration as a property manager; and (b) the Commissioner does not consider that such registration should be refused because of previous failure by the applicant to comply with a condition referred to in paragraph (a). (2) The Commissioner may, on application by the person and payment of the prescribed fee, or on the Commissioner's own initiative, by written notice, vary or revoke conditions of a person's registration under this section. (3) An agent who employs as a property manager a person registered under this section must ensure that the person is properly supervised in that employment. Maximum penalty: $10 000. (4) Without limiting the effect of subsection (3), the regulations may provide that a property manager will not be taken to be properly supervised for the purposes of that subsection unless certain practices specified in the regulations are followed. (5) The Commissioner may, by written notice, cancel the registration of a person registered under this section if the Commissioner is satisfied that the person has, without reasonable excuse, failed to comply with a condition of the registration. 8C—Entitlement to be registered as auctioneer A natural person is entitled to be registered as an auctioneer if the person— (a) is registered as an agent or sales representative under this Act; and (b) has— (ii) subject to the regulations, the qualifications that the Commissioner considers appropriate. 8D—Reviews (1) A person whose application for registration has been refused by the Commissioner may seek a review of the Commissioner's decision by the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013. (2) Subject to subsection (4), an application for review may be made to the Tribunal within 1 month after the making of the Commissioner's decision. (3) The Commissioner must, if so required by the person, state in writing the reasons for the Commissioner's decision. (4) If the reasons of the Commissioner are not given in writing at the time of the making of the Commissioner's decision and the person (within 1 month of the making of the decision) requires the Commissioner to state the reasons in writing, the time for making an application for review runs from the time at which the person receives the written statement of those reasons. 8E—Power of Commissioner to require photograph and information The Commissioner may, by notice in writing, require a natural person who is registered under this Act, within a time fixed by the notice (which may not be less than 28 days after service of the notice)— (a) at least once in every 10 years— (i) to attend at a specified place for the purpose of having the person's photograph taken; or (ii) to supply the Commissioner with 1 or more photographs of the person as specified by the Commissioner; and (b) not more than once in each year—to provide the Commissioner with such evidence as the Commissioner thinks appropriate as to the identity, age and address of the person. 9—Duration of registration and annual fee and return (1) A person's registration remains in force (except for any period for which it is suspended) until— (a) the registration is surrendered or cancelled; or (b) the person dies or, in the case of a body corporate, is dissolved. (2) A registered person must, each year not later than the date fixed by regulation— (a) pay to the Commissioner the fee fixed by regulation; and (b) lodge with the Commissioner a return in the manner and form required by the Commissioner. (3) Where a person fails to pay the annual fee or lodge the annual return in accordance with subsection (2), the Commissioner may, by notice in writing, require the person to make good the default. (4) Where the person fails to comply with the notice within 28 days after service of the notice, the person's registration is cancelled. (5) The Commissioner must notify the person in writing of the cancellation of the person's registration. (6) A registered person may surrender registration. (7) In this section— registered person includes a person whose registration has been suspended. 10—Incorporated agent's business to be properly managed and supervised A registered agent that is a body corporate must ensure that the agent's business is properly managed and supervised by a registered agent who is a natural person. 11—Each of agent's places of business to be properly managed and supervised A registered agent must ensure that each place of business of the agent is properly managed and supervised by a registered agent who is a natural person or, in accordance with the regulations, by some other natural person nominated in writing to the Commissioner. 11A—Regulations relating to proper management and supervision Without limiting the effect of section 10 or 11, the regulations may provide that a registered agent will not be taken to properly manage and supervise a business or place of business for the purposes of section 10 or 11 unless the agent follows practices specified in the regulations. 11B—Registration card to be carried or displayed A natural person who is registered under this Act must, at all times when performing functions as an agent, sales representative or property manager, carry the registration card issued to the person by the Commissioner and produce it forthwith if requested to do so by— (a) an authorised officer; or (b) a person with whom the person has dealings as an agent, sales representative or property manager. Maximum penalty: $1 250. Expiation fee: $160. Part 2AA—Suspension or variation of registration in urgent circumstances 11BA—Commissioner may suspend or impose conditions on registration in urgent circumstances (1) If the Commissioner is of the opinion that— (a) there are reasonable grounds to believe that a registered agent, registered sales representative, registered auctioneer or registered property manager has engaged or is engaging in conduct that constitutes grounds for disciplinary action under Part 4; and (b) it is likely that the agent, sales representative, auctioneer or property manager will continue to engage in that conduct; and (c) there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of the conduct unless action is taken under this section, the Commissioner may, by notice served on the agent, sales representative, auctioneer or property manager— (d) suspend the registration, with immediate effect— (i) for a specified period (not exceeding 6 months); or (ii) until the completion (including withdrawal) of specified legal proceedings; or (iii) until the fulfilment of other specified conditions; or (e) impose specified conditions on the registration, with immediate effect. (2) If the Commissioner is satisfied that the facts and circumstances that gave rise to the imposition of conditions on a registration under this section have so altered that the imposition of the conditions is no longer necessary, the Commissioner must, by further notice specifying the date of termination, terminate the imposition of the conditions. (3) If, during the suspension of a registration under this section, the Commissioner is satisfied that the facts and circumstances that gave rise to the suspension have so altered that the suspension should be terminated, the Commissioner must, by further notice specifying the date of termination, terminate the suspension without delay and restore the registration to the person (either in the form in which it existed prior to the suspension or subject to new conditions). (4) A person whose registration is suspended or made subject to conditions under this section may seek a review by the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 of the decision of the Commissioner to suspend the registration (including the period of the suspension) or to impose the conditions. (5) Subject to subsection (7), an application for review must be made to the Tribunal within 1 month after the making of the relevant decision. (6) The Commissioner must, if so required by the person, state in writing the reasons for the Commissioner's decision. (7) If the reasons of the Commissioner are not given in writing at the time of making the decision and the person (within 1 month of the making of the decision) requires the Commissioner to state the reasons in writing, the time for making an application for review runs from the time at which the person receives the written statement of those reasons. (9) This section applies in relation to conduct occurring before or after the commencement of this section.