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A guide to investigations
and disciplinary proceedings
under the Settlement Agent Act 1981
This publication was issued by the Settlement Agents Supervisory Board.
November 2006
IntroductIon
The Settlement Agents Supervisory Board is the independent statutory authority
responsible for regulating the activities of real estate settlement agents or business
settlement agents in Western Australia. The Board is established under the
Settlement Agents Act 1981. It consists of five members, two of whom must be
licensed settlement agents.
The Settlement Agents Act prohibits any unlicensed persons from carrying on
business as an agent. It also imposes various obligations on licensed agents. In
particular:
➤ Part IV sets out general controls on the conduct of an agent’s business.
➤ Part VI requires an agent to maintain one or more trust accounts and imposes
obligations in relation to the use of those accounts and proper auditing of them.
The Board may also make rules prescribing a code of conduct for agents.
The Board first made the Settlement Agent's Code of Conduct in 1982 and
has amended it several times since. The Code was last published in the
Government Gazette on 4 July 2003. It may also be found on the Board website at
www.sasb.wa.gov.au.
Agents who do not comply with their obligations under the Act or Code may be
subject to disciplinary action. The Registrar and Inspectors of the Board have
powers of investigation or inquiry which they may exercise for the purposes of the
Act, and may investigate whether an agent is complying with the requirements of
the Act, the Code and any conditions of their licence, or there is otherwise proper
cause for disciplinary action against an agent.
The Board no longer holds disciplinary inquiries into the conduct of agents. Since
January 2005, the State Administrative Tribunal has had the power to decide
whether there is proper cause for disciplinary action against an agent. The
Board still has a central function in disciplinary proceedings: only the Board can
commence proceedings against an agent in the State Administrative Tribunal, and
the Board will be the applicant in all proceedings.
The Registrar or an Inspector of the Board may also bring proceedings for an
offence against the Act in the Magistrates Court.
The purpose of this brochure is to outline how the Board carries out its
investigations or inquiries and disciplinary functions.
A guide to investigations and disciplinary proceedings Page 1
coMPLAIntS
the making of a complaint
The usual way in which matters are brought to the attention of the Board is by a complaint.
The Board may receive complaints from consumers, or from another agent, or from
anyone else. Matters requiring investigation or inquiry may also be disclosed in an audit of
an agent’s trust account or, in the course of some other investigation, inquiry or exercise of
the Board’s functions.
The Registrar and the Board may also, without any complaint, direct that an Inspector
make any investigation or inquiry that they consider necessary or expedient for the
purpose of carrying out the Board’s functions under the Act.
How the Board deals with complaints
When the Board receives a complaint, or a matter is otherwise brought to its attention, the
Registrar will determine whether it requires investigation or inquiry.
Page A guide to investigations and disciplinary proceedings
tHE InVEStIGAtIon or InQuIrY ProcESS
Preliminary assessment process
A complaint will be allocated to an Inspector. In most cases it will go through an
initial assessment process. During this assessment, an Inspector may write to the
agent outlining the nature of the complaint and request a response to the matters
in it. Where the agency is a firm or body corporate, a copy of the letter may also
be sent to the person in bona fide control of the agency concerned. The Inspector
may also telephone the agent to discuss the complaint and may ask to see relevant
documents.
During the preliminary assessment of a complaint, the Board will not compel
a person to provide information and documents. Information and evidence
obtained during this process may be used later if the matter proceeds in the State
Administrative Tribunal or Magistrates Court.
If the preliminary assessment identifies sufficient cause for concern, then the
Registrar may issue a direction for a formal investigation to proceed.
the formal investigation or inquiry process
Where the Registrar directs a formal investigation into a complaint, an Inspector will
seek further information from the settlement agent concerned.
The Inspector may interview the person who made the complaint, and anyone else
who may be able to give relevant information, and may take statements from them.
The agent may be offered a formal interview. The Inspector will inform them in
writing of the interview process and the allegations that have been made. The
agent is not obliged to attend the interview or to answer questions put to them. An
interview does, however, provide the agent with an opportunity to put their side to
the complaint and to respond to any matters raised against them. All information,
including their response, will be considered in deciding whether the Board should
take any further action.
Any person may have a lawyer or other person not connected to the investigation
present at an interview.
The Inspector will record the interview on tape and give a copy of the tape to the
person interviewed at the end of the interview.
A guide to investigations and disciplinary proceedings Page
Sometimes the Registrar or an Inspector may compel a person to give information,
answer any question or produce any document for inspection. Failure to comply without
reasonable excuse may lead to prosecution. In this circumstance, the Inspector may
require questions to be answered on oath or affirmation.
Warrants
If necessary, an Inspector may apply to a Justice of the Peace or a Magistrate for a
warrant to enter and search premises.
A person must allow an Inspector with a warrant to enter their premises. It is an offence
under the Act to obstruct an investigator who has a warrant to enter.
A warrant may authorise the holder, and those others named in the warrant, to search
premises, to inspect documents found there, and to make copies or extracts of them.
confidentiality
The Inspectors are under statutory obligations to maintain the confidentiality of information
they obtain in the course of their duties. Inspectors are also aware of their responsibilities
when handling personal information and the need for it to be stored securely.
Page A guide to investigations and disciplinary proceedings
outcoME oF tHE ForMAL InVEStIGAtIon or InQuIrY
At the conclusion of an investigation or inquiry the Board may take one or more of
a range of actions.
Where the investigation or inquiry does not identify sufficient evidence of a breach
of the Act or Code, the Board will take no further action.
Even where an investigation or inquiry reveals evidence of non-compliance with
the Act or Code this will not always result in disciplinary proceedings. Depending
on the circumstances, the Registrar may decide to issue an educational letter or an
administrative warning.
Where there is sufficient evidence of a breach, and it is in the public interest, the
Registrar will recommend that the Board commence proceedings against the agent
in the State Administrative Tribunal or Magistrates Court. The Registrar will have
regard to a range of factors such as the nature of the conduct, prior history of
compliance with the Act, and the strength of the evidence available.
Evidence of any criminal conduct will immediately be referred to the Police.
The Board will notify all parties in writing of the outcome.
A guide to investigations and disciplinary proceedings Page
ProcEEdInGS In tHE StAtE AdMInIStrAtIVE trIBunAL
The State Administrative Tribunal was established by the State Administrative Tribunal
Act 2004. It began operation in 2005.
The Tribunal has power to make decisions under more than 130 Acts, including the
Settlement Agents Act. Matters before the Tribunal are divided into four streams. If
the Board commences proceedings against an agent in the Tribunal it will be heard in
the Vocational Regulation stream, in which the Tribunal hears complaints concerning
occupational misconduct in various occupations, and reviews decisions concerning
licensing.
After the Board has made an application, it will give a copy of it to all the parties who may
be affected by the application. The Board and all persons named in the application will be
parties to the proceedings. Other persons whose interests are affected by the proceedings
may be joined as parties.
The Tribunal will normally hold an initial directions hearing to decide how the matter will
proceed. At the directions hearing, or at any stage of the proceedings, it may order the
parties to attend a compulsory conference in the Tribunal, or may refer the matter for
mediation.
Compulsory conference and mediation sessions held at the Tribunal are confidential
meetings where participants are assisted to identify the issues and possible solutions.
Anything discussed at these meetings cannot be used later in proceedings.
Sometimes at these meetings, if a settlement is reached, a settlement agreement will be
made and, where appropriate, the Tribunal will make orders to give it effect. This will bring
the matter to a close. The order will be published on the Tribunal website.
If the matter goes to a hearing of the allegation against the agent, the Tribunal will be
constituted by 3 persons:
(a) a legally qualified member;
(b) one person who has extensive or special experience in the same vocation as the
person affected by or the subject of the decision or matter; and
(c) one person not engaged in that vocation and who is familiar with the interests
of persons dealing with persons engaged in that vocation or has knowledge or
experience enabling the person to understand those interests.
The State Administrative Tribunal is not a court, although the President and Deputy
Presidents of it are judges. It is not bound by court procedures and rules of evidence, but
may act more informally. Parties appearing before the Tribunal may be represented by a
lawyer, and are entitled to call evidence and examine and cross-examine witnesses. Its
hearings are generally open to the public.
Page A guide to investigations and disciplinary proceedings
If the State Administrative Tribunal is satisfied that proper cause exists for
disciplinary action, it may do any one or more of the following things:
a) reprimand or caution a settlement agent;
b) impose a fine up to $10,000; and
c) suspend or cancel the agent’s licence and any triennial certificate and, in
addition, disqualify the agent either temporarily or permanently from holding a
licence or triennial certificate, or both.
The Tribunal will give written reasons for its decision, and those reasons may be
published on its website.
The Tribunal may order a party to pay the costs of another party or person, and
may order that a party pay the costs of the proceedings.
A party may appeal from a decision of the Tribunal to the Supreme Court, but only
if the court gives leave to appeal.
Orders of the Tribunal, including a fine and an order for costs, can be enforced by
a court. Further, the Tribunal may suspend the licence of an agent if an order is not
complied with or otherwise breached
More detailed information about the operation and procedures of the
Tribunal are found in the State Administrative Tribunal Act 2004, the
State Administrative Tribunal Regulations 2004, and in Rules and Practice Notes
made by the Tribunal. The Tribunal maintains a website at www.sat.justice.wa.gov.au
which includes an overview of its procedures and links to relevant documents
and legislation. The Tribunal can also be contacted by telephone (08) 9219 3111
or 1300 306 017 (STD callers) or at its offices at Level 4, 12 St Georges Terrace,
Perth WA 6000.
A guide to investigations and disciplinary proceedings Page
ProcEEdInGS In tHE MAGIStrAtES court
The Magistrates Court began operating in May 2005. It amalgamates the former Court of
Petty Sessions, Local Court and Small Claims Tribunal into a single court dealing with civil
and criminal matters.
Proceedings for an offence against the Act will commence in the Criminal Jurisdiction of
the Magistrates Court.
To commence a proceeding, the Registrar or Inspector will complete and file in the
Magistrates Court a Prosecution Notice. At that time, a prosecution number and hearing
date will be allocated. The Registrar or Inspector will then serve the Prosecution Notice,
Summons to the Accused, and Court Hearing Notice on the person accused of committing
the offence. These documents set out the details of the offence which is alleged, when
and where it is to be first dealt with in the court, and the options available to the person
charged.
More detailed information about the operation and procedures of the Magistrates Court
are found in The Magistrates Court website at www.magistratescourt.wa.gov.au. The
Magistrates Court has a number of registries located around the state. The Criminal
Registry in Perth is located at:
Central Law Courts
30 St Georges Terrace
PERTH WA 6000
Telephone: (08) 9425 2222
Listings: (08) 9425 2434
Enquiries: (08) 9425 2266 and (08) 9425 2265
Facsimile: (08) 9221 1307
Page 8 A guide to investigations and disciplinary proceedings
FurtHEr InForMAtIon
If you have any questions about the information contained in this
brochure, or wish to obtain more information about the Board’s disciplinary
processes, please contact the Board by telephone on (08) 9282 0844 or by
fax on (08) 9282 0869.
You may also visit the website maintained by the Board at
www.sasb.wa.gov.au
This brochure contains general information that was current at the time of
publication. The information is intended as a guide only. For more detailed
information please refer to the relevant legislation or seek legal advice. The
producers of this publication expressly disclaim any liability arising out of a
reader’s reliance on this publication.
Real Estate and Settlement Call Centre 1300 30 40 64
(for the cost of a local call statewide)
8.30am-5.00pm weekdays
Forrest Centre
219 St Georges Terrace, Perth
Western Australia 6000
Administration: (08) 9282 0844
Facsimile: (08) 9282 0869
TTY (08): 9282 0800
Locked Bag 14, Cloisters Square WA 6850
Translating and Interpreting Service:
131 450 and ask for a connection to 1300 30 40 64
Website: www.sasb.wa.gov.au
Email: contactus@sasb.wa.gov.au
DP099772 / Nov 06 / 1000
Great Southern (08) 9842 8366
South-West (08) 9722 2888
Mid-West (08) 9964 5644
Goldfields/Esperance (08) 9021 5966
North-West (08) 9185 0900
Kimberley (08) 9169 2811
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