Part 5Discipline

Part 5—Discipline 26—Interpretation In this Part— dealer means— (a) a dealer or former dealer required to be licensed under this Act or a corresponding previous enactment (whether or not currently or previously licensed); or (b) a licensee (whether or not carrying on business as a dealer); director of a body corporate includes a former director of a body corporate; salesperson includes a former salesperson. 27—Cause for disciplinary action (1) There is proper cause for disciplinary action against a dealer if— (a) licensing of the dealer was improperly obtained; or (b) the dealer has acted contrary to an assurance accepted by the Commissioner under the Fair Trading Act 1987; or (c) the dealer or another person has acted contrary to this Act or otherwise unlawfully, or improperly, negligently or unfairly, in the course of conducting, or being employed or otherwise engaged in, the business of the dealer; or (d) in the case of a dealer who has been employed or engaged to manage and supervise an incorporated dealer's business—the dealer or another person has acted unlawfully, improperly, negligently or unfairly in the course of managing or supervising, or being employed or otherwise engaged in, that business; or (e) the dealer has failed to attend a conference convened under Part 4, or has not conducted himself or herself reasonably at such a conference, or has failed to carry out his or her obligations under an agreement reached at such a conference; or (f) the dealer has failed to comply with an order made by the Magistrates Court under Part 4; or (h) events have occurred such that the dealer would not be entitled to be licensed as a dealer if he or she were to apply for a licence. (1a) There is proper cause for disciplinary action against a salesperson if the salesperson has acted unlawfully, improperly, negligently or unfairly in the course of acting as a salesperson. (2) Disciplinary action may be taken against each director of a body corporate that is a dealer if there is proper cause for disciplinary action against the body corporate. (3) Disciplinary action may not be taken against a person in relation to the act or default of another if that person could not reasonably be expected to have prevented the act or default. (4) This section applies in relation to conduct occurring before or after the commencement of this Act. 28—Complaints The Commissioner or any other person may lodge with the Tribunal a complaint setting out matters that are alleged to constitute grounds for disciplinary action under this Part. 29—Hearing by Tribunal (1) On the lodging of a complaint, the Tribunal must conduct a hearing for the purpose of determining whether the matters alleged in the complaint constitute grounds for disciplinary action under this Part. (2) Without limiting the usual powers of the Tribunal, the Tribunal may during the hearing— (a) allow an adjournment to enable the Commissioner to investigate or further investigate matters to which the complaint relates; and (b) allow the modification of the complaint or additional allegations to be included in the complaint subject to any conditions as to adjournment and notice to parties and other conditions that the Tribunal may think fit to impose. 30—Participation of assessors in disciplinary proceedings (1) For the purposes of section 22 of the South Australian Civil and Administrative Tribunal Act 2013, there will be a panel of assessors consisting of— (a) persons representative of dealers; and (b) persons representative of members of the public who deal with dealers, who have expertise that would be of value to the Tribunal in relation to proceedings before the Tribunal under this Part. (2) In any proceedings under this Part, the Tribunal will, if the President so determines, sit with 1 or more assessors from the panel. (3) In this section— President means the President of the Tribunal appointed under the South Australian Civil and Administrative Tribunal Act 2013. 31—Disciplinary action (1) On the hearing of a complaint, the Tribunal may, if it is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the person to whom the complaint relates, by an order or orders do one or more of the following: (a) reprimand the person; (b) impose a fine not exceeding $100 000 on the person; (c) in the case of a person who is licensed as a dealer— (ai) impose conditions or further conditions on the licence; or (i) suspend the licence for a specified period or until the fulfilment of stipulated conditions or until further order; or (ii) cancel the licence; (d) impose conditions as to the conduct of the person or the person's business as a dealer; (e) disqualify the person from being licensed under this Act; (f) prohibit the person from being employed or otherwise engaged in the business of a dealer; (g) prohibit the person from being a director or having an interest in a body corporate that is a dealer. (2) The Tribunal may— (a) stipulate that a disqualification or prohibition is to apply— (i) permanently; or (ii) for a specified period; or (iii) until the fulfilment of stipulated conditions; or (iv) until further order; (b) stipulate that an order relating to a person is to have effect at a specified future time and impose conditions as to the conduct of the person or the person's business until that time. (3) If— (a) a person has been found guilty of an offence; and (b) the circumstances of the offence form, in whole or in part, the subject matter of the complaint, the person is not liable to a fine under this section in respect of conduct giving rise to the offence. 32—Contravention of orders (1) If a person contravenes or fails to comply with a condition imposed by the Tribunal as to the conduct of the person or the person's business, the person is guilty of an offence. Maximum penalty: $175 000 or imprisonment for 1 year. (2) If a person— (a) is employed or otherwise engages in the business of a dealer; or (b) becomes a director of a body corporate that is a dealer, in contravention of an order of the Tribunal, that person and the dealer are each guilty of an offence. Maximum penalty: $175 000 or imprisonment for 1 year.