Since 1 May 2006 persons in NSW involved in these occupations have been licensed under the Commercial Agents & Private Inquiry Agents Act 2004 (CAPI Act) which is governed by the Security Licensing and Enforcement Directorate - NSW Police Force. This regulatory regime is soon to change with the NSW Government introducing the Security Industry Amendment (Private Investigators) Bill 2016 which was passed without amendment in the Legislative Assembly and Legislative Council on 10 August 2016.
This Bill will remove the regulation of private investigators from the CAPI Act and provides for them to be licensed under the NSW Security Industry Act 1997.
The NSW Government introduced a further standalone bill to regulate commercial agents and to repeal the CAPI Act – such bill moving oversight of commercial agents away from Police to the Office of Fair Trading. The two bills will commence at the same time on a date yet to be proclaimed.
On 11 October 2016, Fair Trading Amendment (Commercial Agents) Bill was amended such that all commercial agents in NSW would be subject to a new licensing regime: the legislation provides for negative licensing of commercial agents engaged in telephone collections only (no face to face contact with consumers) and that for all other commercial agents where involved in activities involving face to face contact with consumers (whether in debt collections, process serving or repossessions) they shall continue to be regulated under a positive licensing scheme.
The key points of the amendments being:
The amendments were passed in the Legislative Council on 11 October 2016 and considered by the Legislative Assembly which passed the amendments on 13 October 2016.
Currently, until the new legislation comes into effect, under the CAPI Act licences are placed into two groups:
Holders of Operator licences must be employed by the holder of a Master licence (not subcontracting), or hold an Individual Master licence themselves.
Operator licences may be issued for a period of 1 or 5 years and Master licences may be issued for 5 years, unless suspended or cancelled by the NSW Police Commissioner; e.g. if the conditions of a licence are not satisfied or the licensee is convicted of a prescribed offence.
A person's first operator licence is probationary and the holder must work under the immediate supervision of a fully licensed operator or master licence holder.
An Operator licence is a 'photograph' licence, approved by NSW Police and issued by the Roads & Marine Services (RMS).
A Master licence (for businesses) is a certificate style, paper licence, approved and issued by the CAPI Unit, Security Licensing & Enforcement Directorate - NSW Police Force (SLED).
All licences are subject to conditions. It is a responsibility of licensees to be familiar with and comply with all conditions.
Licence fees must accompany all applications. Unsuccessful applications incur a non-refundable processing fee. Completed licence applications are processed centrally by the CAPI Unit at SLED which can be contacted as follows:
Security Licensing and Enforcement Directorate, Locked Bag 5099, Parramatta NSW 2124
Phone: 1300 362 001 8:30am to 4:30pm Monday to Friday (excluding public holidays)
Fax: 1300 362 066
SLED does not have facility for personal lodgement - applications and payments will only be accepted by post. For further information see www.police.nsw.gov.au/sled.
Historically, process servers in NSW deposed their occupation within Affidavits of Service as either: "I am a licensed commercial agent" or "I am a licensed commercial sub agent". Such terms are not appropriate under the current licensing of a master/operator structure with endorsement for functions such as debt collection, process serving or repossession.
Accordingly, for the purpose of clarity the appropriate descriptor to use for the process server’s occupation in affidavits and declarations is the term "a licensed process server" - such descriptor usage was recommended by the IMA and has been subsequently endorsed by the CAPI Unit.