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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Land Agents (Registration of Property Managers and Other
Matters) Amendment Bill 2017
A BILL FOR
An Act to amend the
Land
Agents Act 1994
.
Contents
Part 2—Amendment of Land Agents
Act 1994
5Amendment of section
3—Interpretation
6Amendment of section 6A—Sales
representatives to be registered
6ABProperty
managers to be registered
9Insertion of sections 8BA and 8BB
8BAEntitlement to be registered as
property manager
11BRegistration
card to be carried or displayed
Part 2AA—Suspension or variation of
registration in urgent circumstances
11BACommissioner
may suspend or impose conditions on registration in urgent
circumstances
12Amendment of section 11C—Commissioner
may cancel, suspend or impose conditions on registration
13Amendment of section 12—Interpretation
of Part 3
14Amendment of section 13—Receiving and
dealing with trust money
15Amendment of section 14—Withdrawal of
money from trust account
16Amendment of section 29—Indemnity
fund
17Amendment of section 42—Interpretation
of Part 4
19Amendment of section 47—Disciplinary
action
20Amendment of section
49—Delegations
21Amendment of section 50—Agreement with
professional organisation
22Amendment of section
61—Prosecutions
23Amendment of section
62—Evidence
24Amendment of section
65—Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Land Agents (Registration of Property
Managers and Other Matters) 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 Agents
Act 1994
Long title—after "sales representatives" insert:
and property managers
5—Amendment
of section 3—Interpretation
(1) Section 3—after the definition of mortgage
financing insert:
property manager means a person who, for or on behalf of an
agent—
(a) grants leases, tenancy agreements or licence agreements in relation to
land (whether or not that land is to be used for residential purposes or for the
purposes of a business); or
(b) induces or attempts to induce, or makes representations or negotiates
with a view to inducing, a person to enter into such leases or agreements;
or
(c) ensures compliance with the terms and conditions of such leases or
agreements; or
(d) performs a function of a kind prescribed by regulation for the
purposes of this paragraph,
whether or not the agent is the owner of the land, but does not include a
person who performs a function of a kind excluded by regulation from the ambit
of this definition;
(2) Section 3—after the definition of registered agent
insert:
registered property manager includes—
(a) a person registered as a property manager; or
(b) a person registered as a sales representative and additionally
registered as a property manager;
(3) Section 3, definition of sales
representative—delete "only because—" and
substitute:
who performs a function of a kind excluded by regulation from the ambit of
this definition;
(4) Section 3, definition of sales representative, (d) and
(e)—delete paragraphs (d) and (e)
6—Amendment
of section 6A—Sales representatives to be registered
Section 6A(1), penalty provision—delete "$5 000" and
substitute:
$20 000
After section 6A insert:
6AB—Property managers to be
registered
(1) A person must not
act as a property manager for an agent unless the person—
(a) is registered as an agent under this Act; or
(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.
Maximum penalty: $20 000.
(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—
(a) is registered as an agent under this Act; or
(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.
Maximum penalty: $20 000.
8—Amendment
of section 8B—Entitlement to be registered as sales representative subject
to conditions relating to training and supervision
Section 8B(3), penalty provision—delete "$5 000" and
substitute:
$10 000
9—Insertion
of sections 8BA and 8BB
After section 8B insert:
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.
10—Substitution
of section 11B
Section 11B—delete the section and substitute:
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.
After Part 2 insert:
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 appeal to the Court against the decision of the
Commissioner to suspend the registration or to impose the conditions.
(5) Subject to
subsection (7)
, an appeal must be instituted within 1 month after the making of the
decision appealed against.
(6) The Commissioner must, if so required by the appellant, 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 appellant (within 1 month of the making of the decision) requires
the Commissioner to state the reasons in writing, the time for instituting an
appeal runs from the time at which the appellant receives the written statement
of those reasons.
(8) The Court must hear and determine an appeal under this section as
expeditiously as possible.
(9) This section applies in relation to conduct occurring before or after
the commencement of this section.
12—Amendment
of section 11C—Commissioner may cancel, suspend or impose conditions on
registration
Section 11C(1)—delete "or registered auctioneer" and
substitute:
, registered property manager or registered auctioneer
13—Amendment
of section 12—Interpretation of Part 3
Section 12(1), definition of trust account—delete the
definition and substitute:
trust account, in relation to an agent, means an account in
which trust money is required to be deposited by the agent;
14—Amendment
of section 13—Receiving and dealing with trust money
Section 13(1) to (3)—delete subsections (1) to (3) (inclusive) and
substitute:
(1) An agent, sales representative, property manager or any other person
who receives trust money in relation to an agent must, as soon as practicable
after receiving the trust money, deposit the money into an account (in the name
of the agent) approved by the Commissioner at an ADI.
Maximum penalty: $20 000.
(2) An agent, sales representative, property manager or any other person
who is entitled to deposit trust money into, withdraw trust money from, or deal
with trust money in, an agent's trust account must not—
(a) pay money other than trust money into the trust account; or
(b) withdraw, or permit another person to withdraw, money from the trust
account except as permitted by, and in accordance with, this Part.
Maximum penalty: $20 000.
(3) A person—
(a) who receives trust money under subsection (1); or
(b) who is entitled to withdraw or deal with trust money under subsection
(2),
must not cause a defalcation, misappropriation or misapplication of the
trust money.
Maximum penalty:
(a) in the case of a natural person—$100 000 or 5 years
imprisonment or both;
(b) in the case of a body corporate—$250 000.
15—Amendment
of section 14—Withdrawal of money from trust account
(1) Section 14—delete "An agent may withdraw money from a trust
account" and substitute:
Subject to this Part, money may only be withdrawn from a trust account for
the following purposes:
(2) Section 14—delete "; or" wherever occurring and substitute in
each case:
;
16—Amendment
of section 29—Indemnity fund
(1) Section 29(4)(a)—delete "or sales representatives" second
occurring and substitute:
, sales representatives or property managers
(2) Section 29(4)(ab)—delete "or sales representatives" and
substitute:
, sales representatives or property managers
(3) Section 29(4)(f)(i)—after "sales representatives"
insert:
, property managers
(4) Section 29(4)(f)(ii)—delete subparagraph (ii) and
substitute:
(ii) reviewing the operation of this Act; or
(iii) reviewing the operation of the
Land
and Business (Sale and Conveyancing) Act 1994
insofar as it relates to agents or sales representatives;
17—Amendment
of section 42—Interpretation of Part 4
Section 42—after the definition of director
insert:
property manager has the meaning assigned to the term by
section 3 and includes—
(a) a former property manager; and
(b) a registered property manager, whether or not in employment as such,
and a former registered property manager;
18—Amendment
of section 43—Cause for disciplinary action against agents, sales
representatives or property managers
(1) Section 43(1)—delete "or sales representative" and
substitute:
, sales representative or property manager
(2) Section 43(1)(e)—delete "or sales representative" and
substitute:
, sales representative or property manager
19—Amendment
of section 47—Disciplinary action
Section 47(5)—delete subsection (5) and substitute:
(5) In this section—
prescribed offence means—
(a) an offence against section 13(3); or
(b) an offence against section 24A(2), section 24G(1), (2)
or (3) or section 36 of the
Land
and Business (Sale and Conveyancing) Act 1994
.
20—Amendment
of section 49—Delegations
Section 49(1)(c)—delete "or sales representatives" and
substitute:
, sales representatives or property managers
21—Amendment
of section 50—Agreement with professional
organisation
Section 50(1)—delete "or sales representatives" and
substitute:
, sales representatives or property managers
22—Amendment
of section 61—Prosecutions
Section 61(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, whether the offence is alleged to
have been committed before or after the commencement of this
paragraph.
23—Amendment
of section 62—Evidence
Section 62(a)—delete "or auctioneer" and substitute:
, property manager or auctioneer
24—Amendment
of section 65—Regulations
Section 65—after subsection (5) insert:
(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.