Commercial Agents Regulations in South Australia: Licensing & Record-Keeping, Lecture notes of Business

Download Commercial Agents Regulations in South Australia: Licensing & Record-Keeping and more Lecture notes Business in PDF only on Docsity! (Reprint No. 1) SOUTH AUSTRALIA COMMERCIAL AND PRIVATE AGENTS REGULATIONS, 1989 These regulations are reprinted pursuant to the Subordinate Legislation Act 1978 and incoiporate all amendments in force as at 8 February 1995. It should be noted that the regulations were not revised (for obsolete references, etc.) prior to the publication of this reprint. (Reprint No. 1) ii Commercial and Private Agents Regulations, 1989 SUMMARY OF PROVISIONS PART I PRELIMINARY Citation Revocation commencement Interpretation Device of prescribed kind: s. 4 Application of Act: s. 5 Registered address of agent Exemptions (s. 6 of the Act) PART I1 LICENSING AND CONTROL OF AGENTS Endorsements to licences: s. 9 Conditional endorsements to licences: s. 11 Fees Forms Advertisement of applications (s. 12(3) of the Act) Annual fees and returns: s. 13 Notice of change in circumstances Replacement of licences Transitional provisions: clause 3 of schedule PART m COMMERCIAL AGENTS' TRUST ACCOUNTS F i c i a l Institutions: s. 28 Accounts to be kept by agent: s. 30 Receip! to be given by agent Offences relating to disbursements of trust money Auditor's report Agent's statement Where deficiency, etc., in trust money Transitional provision for audit of trust accounts SCHEDULE 1 Fees SCHEDULE 2 Fonns APPENDIX LEGISLATIVE HISTORY (Reprinl No. I ) PART I Commercial and Private Agents Regulations, 1989 3 (ii) does not attend at premises for the purpose of giving advice upon or maintaining any such device that is, is to be, or may be, installed at those premises; and (iii) does not engage another to perform a function referred to in subparagraphs (i) or (ii). (la) A person who would otherwise be required under the Act to hold a licence with the endorsement crowd controller is exempt from that requirement if- (a) the person performs the function of controlling crowds while acting in the ordinary course of his or her employment in connection with the licensed casino; (b) the person is not employed or engaged to control or deal with persons who behave in a disorderly manner or create a nuisance. (Ib) A person who has, before the commencement of these regulations, applied for a licence bearing the endorsement security alarm agent or crowd controller, or for an additional endorsement of that kind to a licence, is exempt from the requirement to hold such a licence until the application is determined or 31 December, 1990, whichever first occurs. (2) A body corporate that carries on the business of loss adjusting is exempt from the requirement to be licensed under the Act while acting in the ordinary course of such a business on condition that the business is managed by a natural person who is resident in this State and who is exempt from the requirement to hold a licence under the Act pursuant to section S(e)(iii) of the Act. (3) A person employed under a contract of service by a body corporate of a kind referred to in subregulation (2) is exempt from the requirement to be licensed under the Act while acting in the ordinary course of such employment. (4) A person employed in connection with any Australian Formula One Grand Prix for the purposes of- (a) protecting or guarding a person or property, or keeping a person or property under surveillance, while within the declared area; (b) preventing, detecting or investigating the commission of an offence in relation to a person or property within the declared area; (c) controlling crowds within the declared area, is, subject to the conditions set out in subregulation (5), exempt from the requirement to be licensed under the Act while acting in the ordinary course of such employment. (5) An exemption under subregulation (4) is subject to the conditions- (a) that the person must not, while acting in the course of the employment, carry a firearm or other offensive weapon; (Reprint No. 1) PART I 4 Commercial and Private Agents Regulations, 1989 and (b) that the person must, while acting in the course of the employment, be under the direct supervision of a licensed security guard. (6) In this regulation- "declared area" means the area from time to time declared as the declared area for a year (. under the Australian Formula One Grand Prix Act, 1984. (Reprinl No. 1) PART I1 Commercial and Private Agents Reeulations, 1989 5 PART I1 LICENSING AND CONTROL OF AGENTS Endorsements to licences: s. 9 7. (1) A licence that bears an endorsement set out below authorizes the holder of the licence to act as an agent by performing one or more of the classes of functions set out below in relation to that endorsement. Endorsement Classes of functions 1 or commercial agent (a) ascertaining the whereabouts of or repossessing goods or chattels that are subject to any security interest; (5) collecting or requesting the payment of debts; (c) executing any legal process for the enforcement of any judgment or order of a court; (d) executing any distress for the recovery of rates, taxes or money. 2 or inquiry agent 3 or security agent 4 or security guard 5 or security alarm agent (a) obtaining or providing (without the written consent of a person) information as to the personal character or actions of the person or as to the business or occupation of the person; (5) searching for missing persons; (c) obtaining evidence for the purpose of legal proceedings (whether the proceedings have been commenced or are prospective). (a) protecting or guarding a person or property or keeping a person or property under surveillance; ( ' hiring out or otherwise supplying a dog or other animal for the purpose of protecting or guarding a person or property; (c) preventing, detecting or investigating the commission of any offence in relation to a person or property; (d) controlling crowds. (a) protecting or guarding a person or property or keeping a person or property under surveillance; CbJ preventing, detecting or investigating the commission of any offence in relation to a person or property; (c) controlling crowds. providing advice on, hiring out or otherwise supplying or installing or maintaining a device of a prescribed kind for the purpose of protecting or guarding a person or property or keeping a person or property under surveillance. (Reprinf No. I ) PART I1 8 Commercial and Private Agents Regulations, 1989 Replacement of licences 14. The Registrar may issue to a licensee, on payment of the prescribed fee, a licence in replacement of a current licence if satisfied- (a) that the current licence has been lost, destroyed or damaged; (b) that any photograph of the licensee on the current licence should be replaced with a more recent photograph of the licensee; (. (c) that any particulars appearing on the current licence are, due to a change in those particulars, no longer correct. 'Ikansitional provisions: clause 3 of schedule 15. (1) A person who was, immediately before the commencement of the Act, the holder of a ( licence under the repealed Act of a category set out below is entitled to hold a licence under the Act with the endorsement and subject to the conditions (if any) set out below as corresponding to that category. Category of licence under Corresponding endorsement Conditions re~eaied Act under the Act Commercial agent Commercial sub-agent Inquiry agent Loss assessor Process server Security agent Security guard Store security officer 1 or commercial agent 1 or commercial agent As specified in s. I l(l)(a) of the Act 2 or inquiry agent 2 or inquiry agent 8 or process server 3 or security agent and 5 or security alarm agent 4 or security guard As specified in s. 11(T)(a) of the Act 6 or security officer As specified in s. 1 l(l)(a) of the Act. (2) If the licence held under the repealed Act is a provisional licence, the corresponding endorsement to a licence under the Act is subject to the conditions specified in section l l(l)(b) of the Act. (Reprint No. 1) PART I11 Commercial and Private Agents Regulations, 1989 9 PART 111 COMMERCIAL AGENTS' TRUST ACCOUNTS Financial Institutions: s. 28 16. The following are financial institutions with which a commercial agent may deposit trust money- (a) ANZ Executors and Trustee Company (South Australia) Limited; (b) CBFC Limited; (c) the Co-operative Building Society of South Australia; (ca) Executor Trustee Australia Limited; (8) Farmers Trustee Group; (e) Hindmarsh and Adelaide Building Society; fl R.E.I. Building Society. Accounts to be kept by agent: s. 30 17. The accounts, records and documents that a commercial agent must keep or cause to be kept in relation to the agent's functions as a commercial agent are as follows: (a) a separate account must be kept in relation to each client for whom the agent performs services and, if the agent performs services for the client in respect of a number of transactions between different parties, in relation to each such transaction; (6) such an account must include- (i) the name and address of the client for whom the services are provided; and (ii) brief particulars of the services provided and the transaction to which the account relates; (c) where money is transferred from one such account to another- (i) the transfer must be clearly noted in both accounts; and (ii) that notation must indicate the authority given for the transfer by the client or other person entitled to the money; (d) the accounts must include the following information in respect of each disbursement of trust money- (i) the date of the disbursement; (ii) the name of the person to whom the money is disbursed; (iii) the amount of money disbursed; &print No. 1) PART 111 10 Commercial and Private Agents Regulations, 1989 (iv) the account kept under paragraph (a) to which the disbursement is debited; and (v) brief particulars of the purpose for which the disbursement is made; (e) a duplicate copy of a receipt that complies with regulation 18 must be kept in respect of each payment of trust money; It] a receipt that complies with regulation 19 must be kept in respect of each disbursement of trust money by cash cheque. Receipt to be given by agent 18. A commercial agent must make available to a person making payment of trust money a receipt that- (a) is legible; (b) contains the following information: (i) the date of payment; (ii) the name of the person making payment; (iii) the form of payment (cash, cheque or draft) and if the payment is by cheque, the name of the drawer of the cheque; (iv) the amount paid; (v) the name of the person for whom the money is received; and (vi) brief particulars of the purpose for which the payment is made; and (c) is made out on a form comprised in a series of consecutively numbered duplicate receipt forms. Offences relating to disbursement of trust money 19. (1) A commercial agent must not disburse trust money in cash. Penalty: $1 000. (2) Where a commercial agent disburses trust money by cheque- (a) the agent must cross the cheque and endorse it "not negotiable"; or (b) the agent must- (i) obtain from the person to whom the cheque is given a receipt complying with the requirements of subregulation (3); (Reprint No. I ) PART I11 Commercial and Private Agents Regulations, 1989 13 Transitional provision for audit of trust accounts 23. A commercial agent who held a licence under the repealed Act immediately before the commencement of the Act and who maintains a trust account must- (a) have the accounts, records and documents kept by the commercial agent for the period from 1 April, 1988, to 30 June, 1989, audited by an auditor; and (b) submit a copy of the auditor's report to the Commissioner on or before 31 October, 1989, or such later date as the Commissioner may allow. Penalty: $1 000. (Reprint No. 1) SCHEDULES 14 Commercial and Private Agents Regulations, 1989 SCHEDULE 1 Fees $ 1. Subject to clause 2, the following fees are payable under the Act and these regulations: (a) Application fee for licence or alteration or addition to endorsements (section 12(l)) . . . . . . . . . 130 (b) Licence fee (section 12(9))- (i) if licence subject to condition specified in section 1111) . . . . . . . . . . . . . . . . . . . . . . . 83 (ii) inaoyothercase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 (c) Annual licence fee (section 13(2))-- i (i) if licence subject to condition specified in section ll(1) 83 '\ . . . . . . . . . . . . . . . . . . . . . . . (u) in any other case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 (d) Application for relief from agent's charges (section 26) . . . . . . . . . . . . . . . . . . . . . . . . . . 26 (e) Issue of a replacement licence (regulation 14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 2. Notwithstanding clause 1, the fee payable- (a) under clause l(a), (d) or (e) where application is made prior to 1 July 1994; or (bJ under clause l(b) where the licence fee becomes payable prior to 1 July 1994, is the fee payable under these regulations as in force immediately prior to the commencement of this schedule. (Reprinz No. I ) SCHEDULES Commercial and Private Agents Regulations, 1989 15 SCHEDULE 2 Forms FORM 1: APPLICATION FOR LICENCE OR ADDITIONAL ENDORSEMENT TO LICENCE WHERE APPLICANT IS A BODY CORPORATE s. 12 FORM 2: APPLICATION FOR LICENCE OR ADDITIONAL ENDORSEMENT TO LICENCE WHERE APPLICANT IS A NATURAL PERSON s. 12 FORM 3: NOTICE OF APPLICATION FOR LICENCE OR ADDITIONAL ENDORSEMENT TO LICENCE s. 12 FORM 4: NOTICE OF SUSPENSION OF LICENCE s. 13 FORM 5: FORM TO BE LODGED BY AGENT WITH AUDITOR'S REPORT The form to be used by a person lodging with the Tribunal a complaint setting out matters alleged to constitute grounds for disciplinary action against a person who has acted as an agent is the fonn prescribed for that purpose under the Commercial Tribunal Act, 1982. (Reprinr No. I ) SCHEDULES 18 Commercial and Private Aeents Reeulations. 1989 FORM 2 APPLICATION TO THE COMMERCIAL TRIBUNAL FOR A LICENCE UNDER THE COMMERCIAL AND PRNATE AGENTS ACT, 1986 INDIVIDUAL Date of b i i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Residential address (not a post ofice box) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Postcde . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adclressforserviceofnotic es . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Postcde . . . . . . . . . . . . . . . Telephone (Bus.) . . . . . . . . . . . . . . . . . A/H . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trading name (if applicable) Name($ of any person(s) with whom you intend to carry on business as partner (if applicable) Name of licensee which will employ you once licensed. (If you intend conducting your own business, write "self-employed".) A successful applicant will be granted a licence which will be endorsed to permit the performance of limited fnnctions. Please indicate below which endorsements you wish to have approved by the Tribunal. (A full description of each endorsement can be found by reference to Regulation 7 of the Regulations made under the Act). ENDORSEMENT DESCRrPTION YESINO 1. Commercial agent 2. Inquiry agent 3. Security agent 4. Security guard 5. Security alarm agent 6. Security officer 7. Crowd controller 8. Process server (Reprint No. I ) SCHEDULES Commercial and Private Agents Regulations, 1989 19 In addition, the Tribunal may approve an endorsement(s) which will be subject to conditions set out in either Section ll(l)(a) or ll(l)@j of the Act. A "Section ll(l)(a)" condition will permit licensees to perform the functions permitted by the approved endorsement bur only w h i k employed by anorlzer person. A "Section ll(l)(b)" condition will permit licensees to perform the functions permitted by the approved endorsement whilst the licensee is employed by Md under the direct supervisioiz of a properlyduthorised licensee. In most cases an "ll(l)(b)" condition will be applied if the licensee is not experienced in the performance of the endorsement that is the subject of the condition. No condition C] "ll(l)(a)" condition C] "ll(l)(b)" condition C] PLEASE INDICATE YOUR PREFERENCE BY TICKING THE APPROPRIATE BOX ANSWER YES OR NO TO EACH OF THE FOLLOWING QUESTIONS If the answer to any question is "YES", provide full details in the space provided or on an attachment. 1. Have you been convicted of any offence (other than a traffic offence), or are any such proceedings pendimg? . . . . . . . . . . 2. Are you, or have you been, director, secretary, or manager of a company which has been convicted of any offence, or are any such proceedings pending? 3. Are you bankrupt or have you had your affairs administered under the laws of bankruptcy? . . . . . . . . . . 4. Are you, or have you been, a director, secretary, or manager of a company which has had its affairs administered under the laws of bankruptcy? . . . . . . . . . . PLEASE WDICATE BELOW THE DETAILS OF YOUR EXPERIENCE AND QUALIFICATIONS (Use an attachment if space is insufficient.) This section is to be completed ONLY by applicants who seek an endorsement which is unconditional. 5. Have you made suitable arrangements to fulfil the obligations that may arise under the Act? . . . . . . . . . The following information is required to enable the Tribunal to be satisfied (as required by the Act) t M the applicant has sufficient f m c i a l resources to cany on business in a proper manner under the licence. If assets or liabilities are jointly-owned, show the applicant's share only. (Reprint No. I ) SCHEDULES 20 Commercial and Private Agents Regulations, 1989 hereby declare my assets and liabilities to be as follows: Assets Liabilities Net Amount Real estate $ Mottgage owing $ $ Motor vehicles $ Amounts owing $ $ Plant and equipment $ Amounts owing $ $ Other assets (excluding house $ contents and oersonal effects) Amounts owing $ $ Sub-total $ Sub-total $ $ Total credit account balances $ Total debit account (icl. bank, building society, balances (incl. overdraft, credit union, cash on hand) charge accounts, etc., but not trade accounts) $ $ Trade debtors (incl. amounts $ Trade creditors (exclude owing for work in progress if amounts owed on stock applicable) on hand) $ $ Stock on hand $ Amounts owing $ $ Total Assets $ Total Liabilities $ $ What is your overdraft l i t (if applicable)? $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bank . . . . . . . . . . . . . . . . . . . Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INFORMATION CONTAINED IN THIS APPLICATION MUST BE TRUE AND CORRECT TO THE SIGNATORY'S KNOWLEDGE AND BELIEF, A PENALTY OF UP TO $2 000 MAY BE IMPOSED IF FALSE INFORMATION IS GWEN Date Signed (Applicant)