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Currently all states and territories except ACT and Victoria require people who conduct the business of commercial and private enquiry agents to be licensed or registered. This includes carrying on the business of debt collection.
The relevant legislation is Property Agents and Motor Dealers Act 2000 (Qld), Commercial Agents and Private Inquiry Agents Act 2004 (NSW), Security and Investigations Agents Act 2002 (Tas), Security and Investigation Agents Act 1995 (SA), Debt Collectors Licensing Act 1964 (WA), and Commercial and Private Agents Licensing Act 1979 (NT).
There is potential for mortgage managers and servicers to fall within this definition because they collect debts on behalf of a third party, namely the lender.
Generally mortgage managers and servicers are not licensed under these Acts in the same way as real estate agents who collect rent are not licensed. This is because the legislation is intended to regulate people whose predominant business is debt collection.
Mortgage managers and servicers who do not hold themselves out as providing a stand-alone service of debt collecting and collect debts only as an ancillary function of mortgage management should not be considered to be ‘carrying on the business’ of debt collecting.
The NCCP contemplates that businesses which collect debts relating to credit regulated by the National Credit Code must hold an Australian Credit Licence or be a credit representative of a licensee. The NCCP regulations provide an exemption for debt collectors who are licensed, registered, or exempt under state and territory laws. The states and territories need to exempt businesses registered under the NCCP Act from their commercial agents licensing/registration regime, but there is no legislation to that effect at the date of preparing this commentary.
New laws likely to come into effect in late 2014 have been passed in Queensland.
When the changes commence in Queensland, the Property Agents and Motor Dealers Act 2000 (QLD) will be repealed and replaced with four new Acts namely:
Queensland proposes to adopt the Victorian approach of having a negative licensing regime for commercial agents (debt collectors). This means that generally debt collectors are not required to obtain a licence. However, Queensland has retained licensing for field agents (ie agents who engage in face to face communication with the debtor). This is provided for in the Debt Collectors (Field Agents and Collection Agents) Act 2014. As most servicers and managers do not collect debts by face to face communication, the risk that these businesses should hold a licence in Queensland will be removed.
The Act requires the client to appoint the debt collector - see Part 3 Division 2. The appointment must be in writing and specify, among other things, the service to be performed by the debt collector and the fees, charges and any commission payable for the service. The appointment must be signed and dated by the client and the debt collector. The debt collector must give a copy of the signed appointment to the client. These requirements should not be a problem as there is usually a written servicing/management agreement.
As part of the new regime, the Agents Financial Administration Act 2014 will apply to servicers and managers – even though they are not licensed. This Act requires money collected by agents to be paid into a ‘special’ trust account opened after approval to the account is obtained from the ‘chief executive’. A trust account will not be required if collected money is paid direct into an account owned by the creditor (lender) – as is the normal practice.
Lawyers are not debt collectors if they collect debts as part of their legal practice – s30(4) Debt Collectors (Field Agents and Collection Agents) Act 2014.