2006
2006
s05-189
2006-05-01
Commercial Agents and Private Inquiry
Agents Act 2004
act-2004-070
reg
none
reprint
allinforce
website
Gazette No 58 of 28 April 2006, page
2370
1
2011-09-01
sl-2006-0212
30aa0619-b0e2-4a53-a103-17024bc68b7f
c4a1b7f4-0498-4f3c-92b9-451203ff8a4a
His Excellency the Lieutenant-Governor, with the
advice of the Executive Council, has made the following Regulation under the
Commercial Agents and Private Inquiry Agents Act
2004.
CARL SCULLY,
M.P.,Minister for
Police
Part 1Preliminary
1Name of
Regulation
This Regulation is the Commercial Agents and Private Inquiry Agents Regulation
2006.
2Commencement
This Regulation commences on 1 May
2006.
3Definitions
(1)
In this Regulation:
close
associate is defined in clause 4.
licence
number, in relation to a licence, means the unique
identifier included in the licence pursuant to section 20 of the Licensing and Registration (Uniform Procedures) Act
2002.
licensable activity means a
commercial agent activity or a private inquiry agent activity.
licensed
operator means a person who holds an operator
licence.
permanent
Australian resident means a person resident in Australia
whose continued presence in Australia is not subject to any limitation as to
time imposed by or in accordance with law.
qualified
accountant means:
(a)
a Certified Practising Accountant member of CPA
Australia, New South Wales Division, or
(b)
a member of the Institute of Chartered
Accountants in Australia, New South Wales Branch, who holds a Certificate of
Public Practice issued by that Institute, or
(c)
a member of the National Institute of Accountants
who holds a Public Practice Certificate issued by that
Institute.
Registry means the Security Industry
Registry within NSW Police.
the
Act means the Commercial Agents
and Private Inquiry Agents Act
2004.
(2)
Notes included in this Regulation do not form
part of this Regulation.
4Meaning of “close
associate”
(1)
For the purposes of this Regulation, a person is
a close
associate of an applicant for, or the holder of, a licence
if the person:
(a)
holds or will hold any relevant financial
interest, or is or will be entitled to exercise any relevant power (whether in
his or her own right or on behalf of any other person), in the business of the
licence applicant or holder, and by virtue of that interest or power is or
will be able (in the opinion of the Commissioner) to exercise a significant
influence over or with respect to the conduct of that business,
or
(b)
holds or will hold any relevant position, whether
in his or her own right or on behalf of any other person, in the business of
the licence applicant or holder.
(2)
In this clause:
relevant
financial interest, in relation to a business, means:
(a)
any share in the capital of the business,
or
(b)
any entitlement to receive any income derived
from the business, whether the entitlement arises at law or in equity or
otherwise.
relevant
position means:
(a)
the position of director or manager,
or
(b)
any other executive
position,
however those positions are designated.
relevant
power means any power, whether exercisable by voting or
otherwise and whether exercisable alone or in association with others:
(a)
to participate in any directorial, managerial or
executive decision, or
(b)
to elect or appoint any person to any relevant
position.
5Major and minor
offences
(1)
An offence under Division 10, 10A, 14, 14A or 15
of Part 3 of the Crimes Act 1900,
or under section 562AB of that Act, is declared to be a major offence for the purposes of
the Act.
(2)
An offence under section 18Q, 18R, 18S or 18T of
the Privacy Act 1988 of the Commonwealth is
declared to be a minor
offence for the purposes of the Act.
Part 2Licences
Division 1Master
licences
6Applications for master
licences: individuals
An application for a master licence that is made
by an individual must be in the approved form, and must include the following
information:
(a)
the name, date and place of birth and residential
address of:
(i)
the individual, and
(ii)
each of the individual’s close
associates,
(b)
if the individual is not a permanent Australian
resident, information establishing the basis on which the individual is
permitted to work in Australia,
(c)
the individual’s business
address,
(d)
any business name, within the meaning of the
Business Names Act 2002, under which the
individual carries on business,
(e)
the licensable activities in respect of which the
individual proposes to carry on business under the master
licence,
(f)
information establishing that the individual
satisfies the requirements referred to in section 7 (2) (c) of the
Act,
(g)
if the individual is applying for the renewal of
an existing master licence, the licence number of the existing
licence.
Note—
See also the requirements of section 12 of the
Licensing and Registration (Uniform Procedures) Act
2002.
7Applications for master
licences: corporations
An application for a master licence that is made
by a corporation must be in the approved form, and must include the following
information:
(a)
the name of the corporation,
(b)
the name, date and place of birth and residential
address of each of the corporation’s close
associates,
(c)
the address of the corporation’s registered
office and, if that address is not the address of its principal place of
business, the address of its principal place of business,
(d)
any business name, within the meaning of the
Business Names Act 2002, under which the
corporation carries on business,
(e)
the licensable activities in respect of which the
corporation proposes to carry on business under the master
licence,
(f)
if the corporation is applying for the renewal of
an existing master licence, the licence number of the existing
licence.
Note—
See also the requirements of section 12 of the
Licensing and Registration (Uniform Procedures) Act
2002.
8Application
fees
(1)
The fees for an application for the granting,
renewal or restoration of a master licence, regardless of the number of
licensable activities to which it relates, are as follows:
(a)
$465 for a licence for a licensee employing no
licensed operators (a Class 1
licence),
(b)
$895 for a licence for a licensee employing one
or more, but not more than 10, licensed operators (a Class 2
licence),
(c)
$1,925 for a licence for a licensee employing
more than 10 licensed operators (a Class 3
licence).
(2)
The fees for an application for the amendment of
a master licence are as follows:
(a)
$430 for an amendment that would change a Class 1
licence to a Class 2 licence,
(b)
$1,030 for an amendment that would change a Class
2 licence to a Class 3 licence,
(c)
$1,460 for an amendment that would change a Class
1 licence to a Class 3 licence,
(d)
$65 for any other
amendment.
(3)
Of each fee prescribed by subclause (1) or (2),
$65 is a processing fee for the purposes of Part 2 of the Licensing and Registration (Uniform Procedures) Act
2002.
(4)
The fee for an application for the replacement of
a master licence is $50, of which the whole amount is a processing fee for the
purposes of Part 2 of the Licensing and Registration (Uniform
Procedures) Act 2002.
9Applications in relation to
additional licensable activities
An application by the holder of an existing
master licence for a licence to carry on business in relation to a licensable
activity not covered by the existing licence is taken to be an application for
the amendment of the existing licence, and is to be dealt with
accordingly.
10Certain persons not required
to hold master licence
(1)
Pursuant to section 5 (2) (b) of the Act, each of
the following classes of persons is declared to be a class of persons to whom
section 5 of the Act does not apply:
(a)
any subsidiary of a corporation, but only in
relation to licensable activities carried out solely on behalf of the
corporation,
(b)
any corporation that has a subsidiary, but only
in relation to licensable activities carried out by the subsidiary on behalf
of persons other than the corporation,
(c)
any authorised deposit-taking
institution,
(d)
any qualified accountant,
(e)
any agent of:
(i)
any insurance company referred to in Schedule 1
to the Act, or
(ii)
any person carrying on the business of an
insurance loss adjuster referred to in Schedule 1 to the Act,
or
(iii)
any authorised deposit-taking institution
referred to in Schedule 1 to the Act,
but only in relation to licensable activities carried
out solely on behalf that company, person or institution,
(f)
ASX Operations Pty Limited (ACN 004 523
782).
(2)
In subclause (1) (a), subsidiary, in relation to a
corporation, means any corporation that is a related body corporate, within
the meaning of the Corporations Act 2001 of the
Commonwealth, in relation to the corporation.
Note—
The carrying out of a licensable activity by the
subsidiary of a corporation will not require the subsidiary to hold a master
licence where the corporation is the client (subclause (1) (a)). However, the
carrying out of a licensable activity by the subsidiary of a corporation will
require the subsidiary, but not the corporation, to hold a master licence
where a third party is the client (subclause (1) (b)).
11Condition as to periodic
updating of registered particulars
It is a condition of each master licence that any
notice of changed particulars under section 24 of the Licensing and Registration (Uniform Procedures) Act
2002 must be accompanied by a notification fee of $50 if
the change being notified concerns a particular that is included in the
licence.
Note—
Any such change will result in the issue of a
replacement licence with updated particulars.
12Condition as to
record-keeping
It is a condition of each master licence for an
activity that the licensee must keep a record of:
(a)
the name, residential address and licence number
of each of the licensee’s employees who is a licensed operator for that
activity, and
(b)
in relation to each occasion on which the
licensee is engaged to carry out that activity:
(i)
the name and address of the person by whom the
licensee was engaged, and
(ii)
the nature of the work carried out pursuant to
that engagement, and
(iii)
the name of the person by whom that work was
carried out.
Division 2Operator
licences
13Applications for operator
licences
An application for an operator licence must be in
the approved form, and must include the following information:
(a)
the individual’s name, date and place of
birth and residential address,
(b)
if known, the business address of the person or
persons by whom the individual is, or is to be, employed to carry out
licensable activities under the operator licence,
(c)
if the individual is not a permanent Australian
resident, information establishing the basis on which the individual is
permitted to work in Australia,
(d)
the licensable activities that the individual
proposes to carry out under the operator licence,
(e)
information establishing that the individual
satisfies the requirements referred to in section 13 (2) (c) of the
Act,
(f)
if the individual is applying for the renewal of
an existing operator licence, the licence number of the existing
licence.
Note—
See also the requirements of section 12 of the
Licensing and Registration (Uniform Procedures) Act
2002.
14Application
fees
(1)
The fees for an application for the granting,
renewal or restoration of an operator licence, regardless of the number of
licensable activities to which it relates, are as follows:
(a)
$115 for a licence for one
year,
(b)
$465 for a licence for 5
years.
(2)
Of each fee prescribed by subclause (1), $65 is a
processing fee for the purposes of Part 2 of the Licensing and Registration (Uniform Procedures) Act
2002.
(3)
The fee for an application for the amendment of
an operator licence, regardless of the number of licensable activities to
which it relates, is $65, of which the whole amount is a processing fee for
the purposes of Part 2 of the Licensing and
Registration (Uniform Procedures) Act
2002.
(4)
The fee for an application for the replacement of
an operator licence, regardless of the number of licensable activities to
which it relates, is $50, of which the whole amount is a processing fee for
the purposes of Part 2 of the Licensing and
Registration (Uniform Procedures) Act
2002.
(5)
In the case of an application by an individual
for the granting, renewal, restoration, amendment or replacement of both a
master licence and an operator licence, no fee is payable in relation to the
application for the operator licence.
15Applications in relation to
additional licensable activities
An application by the holder of an existing
operator licence for a licence to carry out a licensable activity not covered
by the existing licence is taken to be an application for the amendment of the
existing licence, and is to be dealt with accordingly.
16Certain persons not required
to hold operator licence
(1)
Pursuant to section 11 (3) (b) of the Act, each
of the following classes of individuals is declared to be a class of
individuals to whom section 11 of the Act does not apply:
(a)
any employee of a subsidiary of a corporation,
but only in relation to licensable activities carried out solely on behalf of
the corporation,
(b)
any employee of an authorised deposit-taking
institution,
(c)
any qualified accountant,
(d)
any agent, and any employee of an agent,
of:
(i)
any insurance company referred to in Schedule 1
to the Act, or
(ii)
any person carrying on the business of an
insurance loss adjuster referred to in Schedule 1 to the Act,
or
(iii)
any authorised deposit-taking institution
referred to in Schedule 1 to the Act,
but only in relation to licensable activities carried
out solely on behalf that company, person or institution,
(e)
any employee of ASX Operations Pty Limited (ACN
004 523 782).
(2)
In subclause (1) (a), subsidiary, in relation to a
corporation, means any corporation that is a related body corporate, within
the meaning of the Corporations Act 2001 of the
Commonwealth, in relation to the corporation.
Note—
The carrying out of a licensable activity by the
subsidiary of a corporation will not require an employee of the subsidiary to
hold an operator licence where the corporation is the client (subclause (1)
(a)).
17Condition as to collection of
licence
(1)
It is a condition of the Commissioner’s
decision under section 18 of the Licensing and
Registration (Uniform Procedures) Act 2002 to grant an
operator licence that the licence must be collected, within 60 days after the
date on which notice of the Commissioner’s decision on the application
for the licence is served on the applicant under section 19 of that Act, from
the location specified in the notice for that purpose.
(2)
If an operator licence is not collected within
the period referred to in subclause (1), the Commissioner’s decision is
taken, on and from the end of that period, to be a decision to refuse the
application.
(3)
Pursuant to section 3 of the Licensing and Registration (Uniform Procedures) Act
2002, Part 2 of that Act is modified in relation to a
decision arising under subclause (2) so as:
(a)
not to require the Commissioner to notify that
decision under section 19 of that Act, and
(b)
not to entitle the applicant for the licence to
apply for a review of that decision under section 23 of that
Act.
Note—
The applicant will still be entitled to a refund
under section 22 of the Licensing and Registration (Uniform
Procedures) Act 2002.
18Condition as to periodic
updating of registered particulars
(1)
It is a condition of each operator licence that
any notice of changed particulars under section 24 of the Licensing and Registration (Uniform Procedures) Act
2002 must be accompanied by a notification fee of $50 if
the change being notified concerns a particular that is included in the
licence.
(2)
Only one such fee is payable in respect of the
change by a licensee who holds both a master licence and an operator
licence.
Note—
Any such change will result in the issue of a
replacement licence with updated particulars.
Division 3General
19Investigation of licence
application
(1)
On receiving an application for a licence, the
Commissioner may carry out all such investigations and inquiries as the
Commissioner considers necessary to enable the Commissioner to consider the
application properly.
(2)
In the case of an application made by an
individual, the Commissioner:
(a)
may require the applicant to do any one or more
of the following for the purpose of confirming the applicant’s
identity:
(i)
to provide the Commissioner with a photograph of
the applicant,
(ii)
to consent to having his or her photograph taken
by an authorised officer,
(iii)
to consent to having his or her fingerprints
taken by an authorised officer, and
(b)
must refuse to grant the licence unless the
applicant has complied with any such requirement.
(3)
Any application for a licence made by any person
who was at any time a police officer or a member of the police force of any
other jurisdiction (whether in Australia or overseas) must be referred to the
Professional Standards Command within NSW Police, which may seek further
advice from the Police Integrity Commission as to the suitability of the
applicant to hold a licence.
(4)
In this clause, authorised officer means any of the
following persons authorised in writing by the Commissioner as an authorised
officer for the purposes of this clause:
(a)
any police officer or other person employed
within NSW Police,
(b)
any member of staff of a Department of the Public
Service.
20Contravention of licence
conditions
A licensee must not contravene any condition of
the licence.
Maximum penalty: 50 penalty
units.
21Licensee not to sell or
dispose of licence
A licensee must not:
(a)
sell, dispose of, deliver, let out, hire or rent
the licence to any other person, or
(b)
permit any other person to use the
licence.
Maximum penalty: 50 penalty
units.
22Surrender of
licence
(1)
A licence that is suspended or cancelled must be
immediately surrendered as follows:
(a)
if the notice of suspension or cancellation is
handed to the licensee by a police officer, the person must immediately give
the licence to the police officer,
(b)
if the notice of suspension or cancellation is
served on the licensee otherwise than as referred to in paragraph (a), the
licensee must immediately deliver the licence to the
Commissioner.
Maximum penalty: 50 penalty
units.
(2)
For the purposes of this clause, a licence is
taken to have been delivered to the Commissioner if it has been handed over to
a police officer at a police station or has been sent to the Registry by
registered post.
23Notification of lost etc
licences
(1)
Within 7 days after becoming aware that his or
her licence has been lost, stolen, destroyed, defaced or mutilated, a licensee
must notify the Commissioner of that occurrence.
Maximum penalty: 5 penalty
units.
(2)
For the purposes of this clause, the Commissioner
is taken to have been notified of the occurrence if:
(a)
written notice of the occurrence has been sent by
post to the Commissioner, or
(b)
oral notice of the occurrence has been given,
either in person or by telephone, to a police officer at a police
station.
24Register of
Licensees
The following particulars are to be recorded in
the Register of Licensees in respect of each master licence and operator
licence issued under the Act:
(a)
the name of the licensee,
(b)
the nature of the licence,
(c)
the date on which the licence
expires,
(d)
any conditions that the Commissioner has imposed
on the licence,
(e)
the licence number of the
licence.
Part 3Regulation of licensable
activities
25Licensees to give name and
licence number when conducting business by telephone
A licensee who is carrying on business under a
master licence by telephone, or carrying out licensable activities under an
operator licence by telephone, must advise the person to whom he or she is
speaking, at the beginning of the telephone call and whenever asked during the
telephone call:
(a)
of his or her name and licence number,
and
(b)
of the purpose of the
call.
Maximum penalty: 50 penalty
units.
26Debt collector to produce
evidence of debt if requested
A licensee under a licence for debt collection
who is requesting, demanding or collecting money due under a debt must, on
demand by the debtor, provide the debtor with:
(a)
documentary evidence of the debt,
or
(b)
the creditor’s contact
details.
Maximum penalty: 50 penalty
units.
27Records kept in relation to
debt collection
(1)
The records that clause 11 of Schedule 2 to the
Act requires to be kept in relation to debt collection:
(a)
must be kept in the English language,
and
(b)
may be kept in a computer or on
paper.
(2)
Computer records are to be backed up at intervals
of no more than one month.
(3)
The most recent back-up of computer records must
be kept as far from the computer as is reasonably necessary to ensure that an
incident affecting the computer will not affect the
back-up.
(4)
The holder of a master licence for debt
collection must ensure that the requirements of this clause are complied
with.
Maximum penalty: 100 penalty
units.
Part 4Miscellaneous
28Penalty notice
offences
For the purposes of section 28 of the Act:
(a)
an offence under a provision of the Act or this
Regulation specified in Column 1 of Schedule 1 is prescribed as a penalty
notice offence, and
(b)
the amount specified in Column 2 of Schedule 1 in
respect of such an offence is the prescribed amount of penalty for the
offence.
29Certificates of
authority
(1)
For the purposes of section 32 of the Act, an
authorised inspector’s certificate of authority is to be in the form of
an identity card that bears a photograph of the inspector and includes the
following particulars:
(a)
the inspector’s name,
(b)
the nature of the inspector’s powers under
the Act,
(c)
the date on which the certificate
expires,
(d)
a statement that the certificate is issued under
the Act.
(2)
Police officers are exempt from the operation of
section 32 (1) (a) of the Act.
Note—
Police officers are therefore not required to be
in possession of a certificate of authority when exercising the powers
conferred on an authorised inspector by Division 2 of Part 4 of the
Act.
(3)
An authorised inspector who enters premises in
the exercise of any power under Division 2 of Part 4 of the Act must, on
demand, produce his or her certificate of authority for inspection by any
person who appears to be in charge of the premises.
Maximum penalty: 50 penalty
units.
30Authorised
inspectors
Persons employed within NSW Police, otherwise
than as police officers, comprise a class of persons from whom authorised
inspectors may be appointed under section 35 of the Act.
Note—
Police officers are authorised inspectors by
virtue of the definition of authorised inspector in section 4
(1) of the Act.
31Licences under the 1963
Act
(1)
In this clause, the 1963 Act means the Commercial Agents and Private Inquiry Agents Act
1963.
(2)
The holder of a master licence arising under
clause 4 (1) of Schedule 4 to the Act is taken also to hold an operator
licence for process serving, debt collection and repossession of
goods.
(3)
The holder of a master licence arising under
clause 4 (2) of Schedule 4 to the Act is taken also to hold an operator
licence for surveillance of persons and investigation of
persons.
(4)
A licence arising under subclause (2) or (3), or
under clause 4 of Schedule 4 to the Act, has effect until the date on which it
would have expired under the 1963 Act were that Act still in
force.
Schedule 1Penalty
notices
(Clause 28)
Column
1
Column
2
Provision
Penalty
Commercial Agents
and Private Inquiry Agents Act
2004
Section
26
$550
Section 30
(2)
$1,100
Schedule 2,
clause 2 (4)
$1,100
Schedule 2,
clause 4
$1,100
Schedule 2,
clause 8 (6)
$550
Schedule 2,
clause 11 (6)
$550
Schedule 2,
clause 14 (offence by a corporation)
$1,100
Schedule 2,
clause 14 (offence by an individual)
$550
Schedule 2,
clause 16
$1,100
Schedule 2,
clause 33 (1)
$1,100
Schedule 2,
clause 51 (2)
$550
Commercial Agents
and Private Inquiry Agents Regulation
2006
Clause
20
$550
Clause
21
$550
Clause 22
(1)
$550
Clause 27
(4)
$1,100
Historical
notes
Table of amending
instruments
Commercial Agents
and Private Inquiry Agents Regulation 2006 (212). GG No 58
of 28.4.2006, p 2370. Date of commencement, 1.5.2006, cl
2.