Part 5Miscellaneous

Part 5—Miscellaneous 48A—Advertisements to include registration number of agent An agent must not publish, or cause to be published, an advertisement relating to the sale of land or a business unless the advertisement specifies, alongside the agent's name or contact details, the agent's registration number preceded by the letters "RLA". Maximum penalty: $2 500. Expiation fee: $210. 49—Delegations (1) The Commissioner may delegate any of the Commissioner's functions or powers under this Act— (a) to a person employed in the Public Service; or (b) to the person for the time being holding a specified position in the Public Service; or (c) to any other person under an agreement under this Act between the Commissioner and an organisation representing the interests of agents, sales representatives or property managers. (2) The Minister may delegate any of the Minister's functions or powers under this Act (except the power to direct the Commissioner). (3) A delegation under this section— (a) must be in writing; and (b) may be conditional or unconditional; and (c) is revocable at will; and (d) does not prevent the delegator from acting in any matter. 50—Agreement with professional organisation (1) The Commissioner may, with the approval of the Minister, make an agreement with an organisation representing the interests of agents, sales representatives or property managers under which the organisation undertakes a specified role in the administration or enforcement of this Act. (2) The agreement— (a) must be in writing and executed by the Commissioner and the organisation; and (b) may contain delegations by the Commissioner of functions or powers under this Act or the Fair Trading Act 1987; and (c) must set out any conditions governing the performance or exercise of functions or powers conferred on the organisation; and (d) must make provision for the variation and termination of the agreement by the Commissioner with the approval of the Minister or the organisation. (3) The Commissioner may not delegate any of the following for the purposes of the agreement: (a) functions or powers under Part 2; (b) the approval of classes of accounts at ADIs under Division 2 of Part 3; (c) the appointment, reappointment or termination of appointment of a person to administer an agent's trust account or of a temporary manager under Division 2 of Part 3; (d) functions or powers under Division 3 of Part 3; (e) power to request the Commissioner of Police to investigate and report on matters under Part 5; (f) power to commence a prosecution for an offence against this Act; (g) functions or powers under Schedule 2A. (4) A delegation by the Commissioner for the purposes of the agreement— (a) has effect subject to the conditions specified in the agreement; and (b) may be varied or revoked by the Commissioner in accordance with the terms of the agreement; and (c) does not prevent the Commissioner from acting in any matter. (5) The Minister must, within six sitting days after the making of the agreement, cause a copy of the agreement to be laid before both Houses of Parliament. 51—Exemptions (1) The Minister may, on application by a person, exempt the person from compliance with a specified provision of this Act. (2) An exemption is subject to the conditions (if any) imposed by the Minister. (3) The Minister may, at his or her discretion, vary or revoke an exemption. (4) The grant or a variation or revocation of an exemption must be notified in the Gazette. 52—Register (1) The Commissioner must keep a register of persons registered under this Act. (2) The Commissioner must record on the register— (a) disciplinary action taken against a person under this Act; and (b) a note of any assurance accepted by the Commissioner under the Fair Trading Act 1987 in relation to a person registered under this Act. (2a) If any of the following events occur in relation to a person who is registered as an agent, or is a director of a body corporate that is registered as an agent, the Commissioner may record a note of the event on the register: (a) the person is convicted of an offence of dishonesty; (b) the person 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; (c) the person becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; (d) a body corporate is wound up for the benefit of creditors and the person was a director of the body corporate— (i) when the body corporate was being so wound up; or (ii) within the period of 6 months preceding the commencement of the winding up; (e) the person, being a body corporate, is being wound up or is under official management or in receivership. (3) A person may inspect the register on payment of the fee fixed by regulation. 53—Commissioner and proceedings before Tribunal (1) The Commissioner is entitled to be joined as a party to any proceedings of the Tribunal under this Act. (2) The Commissioner may appear personally in any such proceedings or may be represented at the proceedings by counsel or a person employed in the Public Service. (3) Subsection (1) applies in addition to section 53 of the South Australian Civil and Administrative Tribunal Act 2013. 54—False or misleading information A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided, or record kept, under this Act. (a) If the person made the statement knowing that it was false or misleading—$10 000. (b) In any other case—$2 500. 55—Statutory declaration Where a person is required to provide information to the Commissioner, the Commissioner may require the information to be verified by statutory declaration and, in that event, the person will not be taken to have provided the information as required unless it has been verified in accordance with the requirements of the Commissioner. 56—Investigations The Commissioner of Police must, at the request of the Commissioner, investigate and report on any matter relevant to— (a) the determination of an application under this Act; or (b) a matter that might constitute proper cause for disciplinary action under this Act. 57—General defence It is a defence to a charge of an offence against this Act if the defendant proves that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. 58—Liability for act or default of officer, employee or agent For the purposes of this Act, an act or default of an officer, employee or agent of a person carrying on a business will be taken to be an act or default of that person unless it is proved that the officer, employee or agent acted outside the scope of his or her actual, usual and ostensible authority. 60—Continuing offence (1) A person convicted of an offence against a provision of this Act in respect of a continuing act or omission— (a) is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continued of not more than one-tenth of the maximum penalty prescribed for that offence; and (b) is, if the act or omission continues after the conviction, guilty of a further offence against the provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continued after the conviction of not more than one-tenth of the maximum penalty prescribed for the offence. (2) Where an offence consists of an omission to do something that is required to be done, the omission will be taken to continue for as long as the thing required to be done remains undone after the end of the period for compliance with the requirement. 61—Prosecutions (1) Proceedings for an offence against this Act must be commenced— (a) in the case of an expiable offence—within the time limits prescribed for expiable offences by the Summary Procedure Act 1921; (b) in any other case—within 5 years of the date on which the offence is alleged to have been committed, whether the offence is alleged to have been committed before or after the commencement of this paragraph. (2) A prosecution for an offence against this Act cannot be commenced except by— (a) the Commissioner; or (b) an authorised officer under the Fair Trading Act 1987; or (c) a person who has the consent of the Minister to commence the prosecution. (3) In any proceedings, an apparently genuine document purporting to be a certificate of the Minister certifying authorisation of, or consent to, a prosecution for an offence against this Act will be accepted, in the absence of proof to the contrary, as proof of the authorisation or consent. 62—Evidence In any proceedings, a certificate executed by the Commissioner certifying— (a) that a person was or was not registered as an agent, sales representative, property manager or auctioneer on a specified date; or (b) that a person was or was not registered as a sales representative or manager, or licensed as an agent, under the repealed Land Agents, Brokers and Valuers Act 1973; (c) as to any matter relating to the appointment of an administrator, temporary manager or examiner, constitutes proof, in the absence of proof to the contrary, of the matters so certified. 63—Service of documents (1) Subject to this Act, a notice or document required or authorised by this Act to be given to or served on a person may— (a) be served on the person personally; or (b) be posted in an envelope addressed to the person— (i) at the person's last known address; or (ii) where the person is registered under this Act—at the person's address for service; or (c) where the person is registered under this Act—be left for the person at the address for service with someone apparently over the age of 16 years; or (d) be transmitted by facsimile transmission to a facsimile number provided by the person (in which case the notice or document will be taken to have been given or served at the time of transmission). (2) For the purposes of subsection (1), a person's address for service is the address of which the Commissioner has been last notified in writing by the person as the person's address for service. 64—Annual report (1) The Commissioner must, on or before 31 October in each year, submit to the Minister a report on the administration of this Act during the period of 12 months ending on the preceding 30 June. (2) The report must contain the audited statement of accounts of the indemnity fund for the period to which the report relates. (3) The Minister must, within six sitting days after receipt of the report, cause a copy of the report to be laid before each House of Parliament. 65—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) require registered persons to comply with a code of conduct; (b) fix various maximum rates of commission and other charges that may be charged or made by agents for specified services; (c) regulate charges, payments and reimbursements made by or to an agent in connection with specified services; (d) fix fees to be paid in respect of any matter under this Act and regulate the recovery, refund, waiver or reduction of such fees; (e) exempt (conditionally or unconditionally) classes of persons or activities from the application of this Act or specified provisions of this Act; (f) impose a penalty (not exceeding $2 500) for contravention of, or non-compliance with, a regulation; (g) fix expiation fees, not exceeding $210, for alleged offences against the regulations. (3) Regulations under this Act— (a) may be of general application or limited application; (b) may make different provision according to the matters or circumstances to which they are expressed to apply; (c) may provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Commissioner or the Minister. (4) The regulations may operate by reference to a specified code as in force at a specified time or as in force from time to time. (5) If a code is referred to in the regulations— (a) a copy of the code must be kept available for inspection by members of the public, without charge and during normal office hours, at an office determined by the Minister; and (b) evidence of the contents of the code may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code. (6) The Governor may, by regulation, make additional provisions of a saving or transitional nature consequent on the enactment of the Land Agents (Registration of Property Managers and Other Matters) Amendment Act 2017. (7) A provision of a regulation made under subsection (6) may, if the regulation so provides, take effect from the commencement of this subsection or from a later day. (8) To the extent to which a provision takes effect under subsection (7) from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a person by— (a) decreasing the person's rights; or (b) imposing liabilities on the person.