Purpose
This statement sets out the compliance and enforcement approach that NSW Fair Trading will take regarding the licensing of commercial agents under the Fair Trading Amendment (Commercial Agents) Act 2016 (the Act) and the Fair Trading Amendment (Commercial Agents) Regulation 2022 (the Regulation). This statement supports commercial field agents transitioning to the new licensing regime with Fair Trading.
This statement was approved by the Commissioner for Fair Trading on 5 April 2022 and revised on 29 July 2022.
Background
With the commencement of the Act, responsibility for the regulation of commercial agents will transfer from NSW Police to Fair Trading on 1 July 2022.
From 1 July 2022, only field agents and employers of field agents are required to hold a licence to carry out commercial agent activity under section 60C of the Act. A field agent is a person who approaches a person or enters a premises at which a person resides works, lives, owns, or frequents, for the purposes of carrying out commercial agent activity.
Between 1 July 2022 and 30 June 2023, a person will be taken to hold a Fair Trading licence if:
- they held a licence under the Commercial Agents and Private Inquiry Agents Act
2004 (CAPI Act) on 30 June 2022, and - they carry out commercial agent activity as a field agent from 1 July 2022.
These commercial agents must obtain a new licence from Fair Trading either by the time their CAPI Act licence expires or 30 June 2023, whichever is sooner.
Fair Trading will alter its enforcement approach to licensing between 1 July 2022 and 31 August 2023
Enforcement action will not be taken against field agents and their employers who do not hold a licence:
- Between 1 July 2022 and 31 July 2022, even if an application is not yet lodged with Fair Trading
This captures situations where a commercial agent’s CAPI Act licence expires soon after 1 July 2022 and provides time for the commercial agent to apply for and obtain a licence with Fair Trading. - Between 1 August 2022 and 30 June 2023, if an application has been lodged with Fair Trading prior to the expiry of the agent’s CAPI Act licence. This captures situations where a commercial agent’s CAPI Act licence expires before 30 June 2023. Fair Trading considers that the commercial agent should be entitled to continue to carry out commercial agent activities as a field agent where their application for a new licence is with Fair Trading for processing.
- Between 1 July 2023 and 31 August 2023, if a licence application has been lodged with Fair Trading prior to the end of the transition period on 30 June 2023. This captures situations where a commercial agent’s CAPI Act licence expires after 30 June 2023. Fair Trading expects there may be an increase in the number of applications submitted immediately prior to 30 June 2023. Fair Trading considers that the commercial agent should be entitled to continue to carry out commercial agent activities as a field agent where their application for a new licence is with Fair Trading for processing.
These transitional arrangements apply only to commercial agents who held a valid licence under the CAPI Act on 30 June 2022.
Fair Trading will also alter its enforcement approach where a licence application or renewal made under the CAPI Act between 1 April and 29 June 2022 could not be processed.
Fair Trading has become aware that some CAPI Act licence applications to NSW Police made between 1 April and 29 June 2022 were not processed. These licensees are not covered by the transitional arrangements as they did not hold a licence under the CAPI Act on 30 June 2022.
So that these impacted licensees may continue to work while their licence application under the Act is being processed, enforcement action will not be taken against field agents and their employers who do not hold a licence:
- Between 1 July 2022 and 31 August 2022 for former CAPI licence holders whose licence application was not processed between 1 April and 29 June 2022, even if an application is not yet lodged with Fair Trading. This captures situations where a commercial agent’s CAPI Act licence expired, or a new application was made, between 1 April and 29 June 2022 but was not processed. This will provide sufficient time for the impacted licensee to apply to Fair Trading for a licence while enabling them to work as field agents during this period. These CAPI Act licensees should apply to Fair Trading for a Commercial Agent licence as soon as possible.
This statement only modifies Fair Trading’s enforcement approach to the requirement to hold a licence under section 60C of the Act. Fair Trading reserves the right to take enforcement action against other breaches of the law. This includes enforcement of the commercial agent rules.
More information
More information is on the NSW Fair Trading website.