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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Land and Business (Sale and Conveyancing) (Beneficial
Interest) Amendment Bill 2017
A BILL FOR
An Act to amend the
Land
and Business (Sale and Conveyancing) Act 1994
.
Contents
Part 2—Amendment of Land and Business
(Sale and Conveyancing) Act 1994
39Offences by bodies
corporate
6Amendment of section
40—Prosecutions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Land and Business (Sale and Conveyancing)
(Beneficial Interest) Amendment Act 2017.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Land and Business (Sale and Conveyancing)
Act 1994
4—Amendment
of section 24G—Restriction on obtaining beneficial interest in selling or
appraising property
(1) Section 24G(1), (2), penalty provisions—delete the penalty
provisions and substitute in each case:
Maximum penalty:
(a) in the case of an aggravated offence—$100 000 or imprisonment
for 2 years;
(b) in any other case—$50 000 or imprisonment for 1 year.
(2) Section 24G—after subsection (2) insert:
(2a) If an agent is authorised by a person (the vendor) to
sell land or a business, the following persons must not obtain, or be in any way
concerned in obtaining, a beneficial interest in the land or business:
(a) a natural person who is responsible for managing or supervising the
agent's business (including, but not limited to, a natural person referred to in
section 10 of the
Land
Agents Act 1994
, in relation to that business);
(b) a natural person who is responsible for managing or supervising 1 or
more places of business of the agent at which any of the negotiations,
administration or other functions relating to the sale are conducted by
employees of the agent or persons otherwise engaged by the agent (including, but
not limited to, a natural person referred to in section 11 of the
Land
Agents Act 1994
, in relation to that place of business);
(c) in the case of an agent that is a body corporate—a director of
the body corporate (within the meaning of the
Land
Agents Act 1994
).
Maximum penalty:
(a) in the case of an aggravated offence—$100 000 or imprisonment
for 2 years;
(b) in any other case—$50 000 or imprisonment for 1 year.
(3) Section 24G(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of an aggravated offence—$100 000 or imprisonment
for 2 years;
(b) in any other case—$50 000 or imprisonment for 1 year.
(4) Section 24G(4)—delete "A person" and substitute:
Subject to subsection (10a), a person
(5) Section 24G(6)—after "person" first occurring insert:
(being an agent, sales representative, natural person, or director of a
body corporate, to whom a preceding subsection applies)
(6) Section 24G(9), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of an aggravated offence—$20 000;
(b) in any other case—$10 000.
(7) Section 24G—after subsection (10) insert:
(10a) In this section, an offence relating to the obtaining of a
beneficial interest is an aggravated offence if it is proved that,
at the time the beneficial interest was obtained, the vendor or any of the
vendors were—
(a) 60 years of age or over; or
(b) protected persons within the meaning of the
Guardianship
and Administration Act 1993
; or
(c) suffering from a mental incapacity,
(regardless of whether they were represented by another person during any
of the negotiations giving rise to the obtaining of the beneficial
interest).
(10b) In proceedings, a certificate in the form prescribed by regulation
signed by a medical practitioner stating that, in the opinion of the medical
practitioner, a specified person was or was not suffering from a mental
incapacity at a specified time, will, in the absence of proof to the contrary,
be evidence of the facts so stated.
(8) Section 24G(11), definition of associate—delete
the definition and substitute:
associate, of a person, means—
(a) —
(i) a relative of the person or of the person's spouse or domestic
partner; or
(ii) an employee, employer or partner of the person; or
(iii) a relative of an employee of the person; or
(iv) a body corporate if any of the following persons:
(A) the person;
(B) a relative of the person or of the person's spouse or domestic
partner;
(C) an employee of the person;
(D) 2 or more of the above persons together,
have a relevant interest or relevant interests in shares in the body
corporate the nominal value of which is 10% or more of the nominal value of the
issued share capital of the body corporate; or
(v) a body corporate if a director of the body corporate
is—
(A) a relative of the person or of the person's spouse or domestic
partner; or
(B) an employee of the person; or
(vi) the trustee of a trust if any of the following are beneficiaries of
the trust:
(A) the person;
(B) a relative of the person or of the person's spouse or domestic
partner;
(C) an employee of the person;
(D) a body corporate referred to in subparagraph (iv) or (v);
or
(vii) a person who has a relationship with the person (whether or not
similar to the relationships referred to in the preceding paragraphs) of a kind
prescribed by the regulations for the purposes of this section; or
(b) in addition—
(i) in the case of a natural person referred to in
subsection (2a)(a)—a relative of an employee of the relevant agent;
or
(ii) in the case of a natural person referred to in
subsection (2a)(b)—a relative of a person employed at the relevant
place or places of business of the agent;
(9) Section 24G(11)—after the definition of domestic
partner insert:
medical practitioner means a person registered under the
Health Practitioner Regulation National Law to practise in the medical
profession (other than as a student);
(10) Section 24G(11), definition of relative—delete
the definition and substitute:
relative of a person means—
(a) the spouse or domestic partner of the person; or
(b) a parent (including a step-parent), grandparent (including a
step-grandparent) or remoter linear ancestor of the person; or
(c) a child (including a step-child) or remoter issue of the person;
or
(d) a sibling (including a step-sibling or half-sibling) of the
person;
After section 38 insert:
39—Offences by bodies
corporate
Where a body corporate is guilty of an offence against this Act, each
director of the body corporate is guilty of an offence and liable to the same
penalty as is imposed for the principal offence unless it is proved that the
director could not by the exercise of reasonable diligence have prevented the
commission of that offence.
6—Amendment
of section 40—Prosecutions
Section 40(1)(b)—delete paragraph (b) and substitute:
(b) in any other case—within 5 years of the date on which the
offence is alleged to have been committed or, with the authorisation of the
Minister, at a later time within 7 years of that date.