Regulation 2022: Amendments to the Fair Trading Act 1987 Regarding Commercial Agents, Slides of Business

Download Regulation 2022: Amendments to the Fair Trading Act 1987 Regarding Commercial Agents and more Slides Business in PDF only on Docsity! New South Wales Fair Trading Amendment (Commercial Agents) Regulation 2022 under the Fair Trading Act 1987 Published LW 4 March 2022 (2022 No 65) Her Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Fair Trading Act 1987. ELENI PETINOS, MP Minister for Fair Trading Explanatory note The object of this Regulation is to amend the Fair Trading Regulation 2019 to— (a) insert Part 2B to regulate commercial agents, including in relation to the following— (i) persons taken to be disqualified persons for the purposes of the Fair Trading Act 1987, (ii) grounds on which the Secretary may determine that a person is not a fit and proper person to hold a commercial agent licence, (iii) information to be kept on the Register maintained by the Secretary for the purposes of the Fair Trading Act 1987, Part 5, and (b) prescribe— (i) further penalty notice offences, and (ii) fees for licence applications, renewals, restorations and replacements, and (iii) rules of conduct for the carrying out of commercial agent activities. Fair Trading Amendment (Commercial Agents) Regulation 2022 under the Fair Trading Act 1987 Fair Trading Amendment (Commercial Agents) Regulation 2022 [NSW] 1 Name of Regulation This Regulation is the Fair Trading Amendment (Commercial Agents) Regulation 2022. 2 Commencement This Regulation commences on the day on which the Fair Trading Amendment (Commercial Agents) Act 2016, Schedule 1 commences and is required to be published on the NSW legislation website.Page 2 Published LW 4 March 2022 (2022 No 65) Fair Trading Amendment (Commercial Agents) Regulation 2022 [NSW] Schedule 1 Amendment of Fair Trading Regulation 2019(i) the name and business address of the person whose licence has been cancelled, and (ii) the date on which it was cancelled, and (iii) the reason for which it was cancelled. (2) The Secretary must remove the particulars from the Register in the following circumstances— (a) for an application that is refused— (i) on the subsequent grant of a licence to the applicant, or (ii) if a licence is not granted—on the expiration of the period of 10 years after the application was refused if the Secretary is of the opinion it is no longer necessary or desirable to retain the information, (b) for a licence that is cancelled—on the expiration of the period of 10 years after the date on which the licence was cancelled. 11L Register—convictions, exclusion orders and restriction orders—Act, s 60J(1) (1) For the purposes of the Act, section 60J(1), the Secretary must enter and keep in the Register the following particulars— (a) for each conviction for an offence against the Act— (i) the name and business address of the person convicted, and (ii) the nature of the conviction and sentencing order made, (b) for each exclusion order or restriction order made under the Act, Part 5— (i) the name and business address of the person subject to the exclusion order or restriction order, and (ii) details of the exclusion order or restriction order. (2) The Secretary must remove the particulars from the Register on the expiration of the period of 10 years after the date on which— (a) the person was convicted, or (b) the order was made. 11M Commercial agent rules—Act, s 60K(1) For the purposes of the Act, section 60K(1), the commercial agent rules set out in Schedule 3 are prescribed as the commercial agent rules to be observed in the course of carrying out commercial agent activities. [2] Clause 15 Insert after clause 14— 15 Provision consequent on enactment of Fair Trading Amendment (Commercial Agents) Act 2016 No 52—Act, Schedule 5, cl 1A(4) (1) For the purposes of the Act, Schedule 5, clause 1A(4), on the commencement of the Fair Trading Amendment (Commercial Agents) Act 2016, a person is taken to hold a commercial agent licence under the Act if— (a) the person held, under the repealed Act, a master licence or an operator licence for debt collection, process serving or repossession of goods that was in force on 30 June 2022, and (b) from 30 June 2022 the person has carried out one or more commercial agent activities, andPage 5 Published LW 4 March 2022 (2022 No 65) Fair Trading Amendment (Commercial Agents) Regulation 2022 [NSW] Schedule 1 Amendment of Fair Trading Regulation 2019(c) for the purposes of carrying out a commercial agent activity, the person has engaged in conduct that would otherwise constitute an offence under the Act, section 60C. (2) A licence held under subsection (1) is taken to expire on whichever date is the sooner of the following— (a) the expiry of the period during which the licence granted under the repealed Act would, but for the repeal of that Act, have had effect, (b) 30 June 2023. (3) In this clause— repealed Act means the Commercial Agents and Private Inquiry Agents Act 2004. [3] Schedule 1 Penalty notice offences Insert under the heading Offences under the Fair Trading Act 1987 in appropriate order— [4] Schedules 2 and 3 Insert after Schedule 1— Schedule 2 Fees clause 11I Part 1 Fees payable Section 20(3)(a) $550 $1,100 Section 23(1) $550 $1,100 Section 60B $1,100 $5,500 Section 60C(1) $1,100 $5,500 Section 60C(2) $1,100 $5,500 Section 60C(3) $550 $1,100 Section 60G(4) $1,100 $5,500 Section 60K(3) $550 $1,100 Section 60K(4) $550 $1,100 Section 60K(5) $550 $1,100 Item Column 1 Column 2 Column 3 Column 4 Type of fee Fixed component —in fee units Processing component —in fee units Total—in fee units 1 Application for grant of licence by individual— (a) for 1 year 2.78 1.11 3.89 (b) for 3 years 6.56 1.11 7.67 (c) for 5 years 11.11 1.11 12.22Page 6 Published LW 4 March 2022 (2022 No 65) Fair Trading Amendment (Commercial Agents) Regulation 2022 [NSW] Schedule 1 Amendment of Fair Trading Regulation 2019Part 2 Adjustment of fees for inflation 1 Definitions In this Part— CPI number means the Consumer Price Index (All Groups Index) for Sydney published by the Australian Bureau of Statistics in the latest published series of that index. financial year means a period of 12 months commencing on 1 July. 2 Calculation of fee unit for purposes of Regulation (1) For the purposes of this Regulation, a fee unit is— (a) in the financial year 2022–23—$100, and (b) in each subsequent financial year—the amount calculated as follows— where— A is the CPI number for the March quarter in the financial year immediately preceding the financial year for which the amount is calculated. B is the CPI number for the March quarter of 2017. (2) The amount of a fee unit is to be rounded to the nearest cent, and an amount of 0.5 cent is to be rounded down. 2 Application for grant of licence by corporation— (a) for 1 year 8.50 3.50 12.00 (b) for 3 years 20.00 3.50 23.50 (c) for 5 years 33.50 3.50 37.00 3 Application for renewal or restoration of licence by individual— (a) for 1 year 2.78 0.55 3.33 (b) for 3 years 6.56 0.55 7.11 (c) for 5 years 11.11 0.55 11.66 4 Application for renewal or restoration of licence by corporation— (a) for 1 year 8.50 1.67 10.17 (b) for 3 years 20.00 1.67 21.67 (c) for 5 years 33.50 1.67 35.17 5 Application for replacement of licence 0.55 nil 0.55 Item Column 1 Column 2 Column 3 Column 4 Type of fee Fixed component —in fee units Processing component —in fee units Total—in fee units $100 A B ---Page 7 Published LW 4 March 2022 (2022 No 65) Fair Trading Amendment (Commercial Agents) Regulation 2022 [NSW] Schedule 1 Amendment of Fair Trading Regulation 2019the belief that the person is liable for the debt when requested by the person to do so. 10 Contacting persons (1) This clause applies to commercial agents carrying out a commercial agent activity that is debt collection. (2) A commercial agent must not contact a person— (a) by a method that the person has expressly requested the commercial agent not to use unless the commercial agent has exhausted all other available methods of contacting the person, or (b) after the person has expressly requested the commercial agent not to contact the person again, unless the contact is solely for the purpose of advising the person that the creditor intends to take further action to recover the relevant debt from the person, or (c) outside the hours shown in the following table (reasonable hours)— (3) However, a commercial agent may contact a person outside reasonable hours if the commercial agent has made all reasonable efforts to contact the person during reasonable hours and has failed to do so. (4) In this clause— telephone includes person to person audio or audio visual electronic communication. 11 Acting with honesty A commercial agent must not misinform or otherwise mislead or deceive a person in the course of carrying out a commercial agent activity, including by impersonating another person or misrepresenting the commercial agent’s identity. 12 Costs of carrying out commercial agent activity (1) A commercial agent must not request, demand or collect from a person who is the subject of a commercial agent activity a payment for the costs or expenses incurred by the commercial agent in connection with carrying out the commercial agent activity. (2) If the commercial agent activity is debt collection—this section does not limit a right that the person to whom the debt the subject of the commercial agent activity is payable (the creditor) may have at law in relation to the recovery from the debtor of the creditor’s costs of recovering the debt. Contact by telephone—person not at person’s place of business or employment Contact in person— not at person’s place of business or employment Contact in person—at person’s place of business or employment 7:30am–9pm on weekdays, except public holidays 9am–9pm on any day of the week, except public holidays 9am–5pm on weekdays 9am–9pm on weekends, except public holidaysPage 10 Published LW 4 March 2022 (2022 No 65) Fair Trading Amendment (Commercial Agents) Regulation 2022 [NSW] Schedule 1 Amendment of Fair Trading Regulation 201913 Confidentiality (1) A commercial agent must not disclose, either expressly or by implication, that a person is the subject of a commercial agent activity to another person unless the disclosure is— (a) made with the consent of the person who is the subject of the commercial agent activity, or (b) reasonably necessary to the carrying out of the commercial agent activity by the commercial agent, or (c) made with another lawful excuse. (2) A commercial agent must not threaten a person with disclosure to another person that the person is the subject of a commercial agent activity unless the threat relates to a disclosure that is permitted under subclause (1). 14 Money to be paid into account (1) A commercial agent must deposit all money received in connection with carrying out a commercial agent activity into an account with an authorised deposit-taking institution opened and held by the agent for that purpose. (2) However, if the commercial agent is instructed by the commercial agent’s client to hold the money on trust, the agent must, as soon as practicable, pay the money into a separate trust account opened and held by the agent for that purpose. (3) A commercial agent who holds money on trust must, as soon as practicable after being directed to do so by the commercial agent’s client and in accordance with the client’s instructions— (a) pay the money to the person for whose benefit the money is held, or (b) otherwise disburse the money. 15 Account records to be kept by agent (1) A commercial agent must maintain a record containing full particulars of all transactions in relation to an account, including a trust account, held with an authorised deposit-taking institution in connection with a commercial agent activity. (2) The record may be kept in hard copy or electronic form. (3) Information must be able to be produced from the record on demand in permanent legible form in the English language. (4) In the case of a trust account—the commercial agent must also maintain a record, compiled in chronological sequence, of all changes, including creation, amendment or deletion, to the following information— (a) the name and address of the person for whose benefit the money is held, (b) the code reference number, if any, of the person for whose benefit the money is held, (c) the trust account number. (5) The record of changes must disclose details of the information before and after the change. 16 Records to be kept for at least 3 years A record required to be kept by the Act or this Regulation must be kept for a period of not less than 3 years from the date on which the record was created.Page 11 Published LW 4 March 2022 (2022 No 65) Fair Trading Amendment (Commercial Agents) Regulation 2022 [NSW] Schedule 1 Amendment of Fair Trading Regulation 201917 Unclaimed trust money If money has been held by a commercial agent for more than 2 years in a trust account kept by the commercial agent under clause 14 (unclaimed money), the commercial agent must make reasonable efforts to— (a) identify and locate the owner of the unclaimed money, and (b) if the owner has been identified and located—ensure the unclaimed money is paid to the owner as soon as practicable after locating the owner. 18 Agent must not employ or engage disqualified persons (1) A commercial agent must take all reasonable steps to ensure the commercial agent does not employ or otherwise engage a disqualified person to carry out a commercial agent activity. (2) A commercial agent must notify the Secretary in writing within 7 days of becoming aware a person employed or otherwise engaged by the commercial agent to carry out a commercial agent activity is a disqualified person. 19 Complaints A commercial agent must take all reasonable steps to resolve a complaint made to the commercial agent concerning the carrying out of a commercial agent activity by the commercial agent or an employee or agent of the commercial agent.Page 12 Published LW 4 March 2022 (2022 No 65)