2002

LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY









SECURITY INDUSTRY BILL 2002




EXPLANATORY STATEMENT

Circulated by authority of the
Attorney General
Mr Jon Stanhope MLA

The Security Industry Bill 2002 (the Bill) regulates the ACT security industry. The ACT security industry employs approximately 2,000 Canberrans and is estimated to be worth $60 million per annum. Since 1998, it has been unlawful to work within the industry without registration under one of the five Codes of Practice supported by the Fair Trading Act 1992. The Codes are co-administered by the Office of Fair Trading (OFT) and the Australian Capital Territory Security Protection and Investigation Industry Council Incorporated (ACTSPIIC). The five Codes regulate both employees and principals of the following sectors of the industry:
• access control – installation of physical or electronic devices, electronic alarms, closed circuit television or other electronic surveillance systems and locksmiths;
• bodyguards – provision of close personal protection;
• cash transit – transportation of cash, precious stones and the like;
• crowd marshals – monitoring and control of people in public places and at major events; and
• guard and patrol – monitoring and safeguarding of property.

ACTSPIIC has reviewed the Codes and has highlighted public safety issues associated with the continued participation in the industry of unregistered employees and principals. In response to these concerns, a national competition policy review of the Codes was undertaken in 2001. The National Competition Policy Review of the ACT security industry (the Review) recommended that the ACT consider the adoption of a regulated licensing model for the ACT security industry. The Review also noted the urgent need for training and development of competencies in the industry.

In addition, members of the ACT security industry are eligible for licensing interstate under the Mutual Recognition Act 1992, although the requirements for entry into the industry are significantly lower in the ACT. This has caused significant concern for other jurisdictions and has highlighted the lack of regulation of this industry in the ACT.

The Bill is based on the New South Wales Security Industry Act 1997, and it replaces the existing ACT Codes. The Bill provides for applications for licences, specific licence requirements, including training, and a range of offences. This Bill provides a framework for regulation of the ACT security industry, with the specific requirements for the security industry to be included in the Regulations.

The objectives of the proposed legislation are:
• to enhance compliance activities, primarily through the introduction of offences, including offences for unlicensed principals and employees in the industry;
• to bring the ACT into line with other Australian jurisdictions;
• to clearly outline and monitor standards;
• to impose mandatory training;
• to clarify the provisions for dealing with breaches of standards; and
• to prevent persons from commencing employment prior to the outcome of a criminal record check.

This Bill will impose a cost on the ACT security industry, by permitting the Regulations to impose training requirements. The training requirements will be based on new national training standards that have been developed by the Australian National Training Authority in consultation with the security industry.

The Review noted, from anecdotal information from employers and employees, that there are a large number of untrained persons operating in the ACT security industry. This, in conjunction with some instances of inappropriate behaviour in the industry, indicates that training is needed to ensure that security services are conducted in a safe, ethical and professional manner. Training is particularly important, considering that some members of the industry enter private premises, protect people and property and obtain confidential information.

To minimise the costs of the legislation on the industry, existing members of the industry will not be required to comply with the training requirements until at least a year after the legislation commences. The Bill also provides for recognition of prior learning and experience.

Clause 1 – Name of Act – states the title of the Act, which is the Security Industry Act 2002.

Clause 2 – Commencement – states that the Act commences on a day fixed by the Minister by notice.

Clause 3 – Dictionary – provides that the dictionary at the end of the Act is part of the Act. The dictionary defines key words and expressions used in the Act, and includes references to other words and expressions defined in other parts of the Act or in other legislation.

Clause 4 – Notes – provides that notes included in this Act are only explanatory.

Clause 5 – Offences against Act – application of Criminal Code etc – provides that other legislation applies in regard to the offences against this Act. For example chapter 2 of the Criminal Code applies to offences in this Act. This clause increases awareness of the Criminal Code and alerts the reader to the fact that chapter 2 of the Criminal Code, setting out the general principles of criminal responsibility, applies to this Act.

Clause 6 – Meaning of security business – defines the term security business as a business that carries on one or more security activities.

Clause 7 – Carrying on security activity – defines the term security activity. This definition is central to the Act, as it lists the security activities that are to be regulated. The list is based on section 4 of the New South Wales Security Industry Act 1997. The list includes all of the activities regulated under the previous codes of conduct – bodyguards, cash transit, access control, crowd marshals and guard and patrol.

This clause excludes a number of activities from the definition of a security activity. The exclusions are for people selling self-install security systems, key cutters (who only cut unrestricted keys) and builders installing locks. The Act excludes these people from requiring licensing and regulation as part of the security industry as these people do not have the same free access to enter private premises or to confidential information and do not directly protect people or property.

Clause 8 – Meaning of security equipment – defines the term security equipment for the purposes of the Act. This definition is based on section 3 of the New South Wales Security Industry Act 1997. Security equipment includes any safe or vault, any mechanical, electronic, acoustic or other equipment for the protection or watching of any property.

This clause provides that the Regulations may prescribe additional equipment for the purposes of this definition, or may exclude equipment from this definition.

Clause 9 – Regulations may exempt people from application of Act – provides that the regulations may exempt people from the application of this Act. The regulations will exempt people like police officers and members of the defence forces who are conducting a security activity during their employment. The exemptions will not apply in situations where the exempt person also works as a security guard.

Clause 10 – Offence of carrying on unauthorised security activity – makes it an offence to carry on a security activity without holding a licence. The penalty for this offence is 50 penalty units and/or imprisonment for six months.

This is a strict liability offence. Section 23 of the Criminal Code provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence. Essentially this means that conduct alone is sufficient to make the defendant culpable.

However, under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code makes it clear that other defences may still be available for use in strict liability offences.

Clause 11 – Classes of licences – provides that there are four types of licences under this Act. The licences are master licences, employee licences, trainer licences and temporary licences. A master licence entitles the licensee to employ staff to conduct a security activity. An employee licence entitles the licensee to conduct the security activities for which they have been licensed. A trainer licence entitles the licensee to train people in performing security activities.

This clause also introduces the concept of temporary licences. Temporary licences may be issued to trainees, who do not meet the training requirements or are under the age of 18.

Clause 12 – Master licences – provides that a master licence entitles the licensee to employ or provide people to carry on a security activity. However, the people carrying on the security activity must hold an employee, trainer or temporary license.

Clause 13 – Employee licences - provides that an employee licence entitles the licensee to conduct the security activities for which they have been licensed. Employees can be licensed to perform one or more of the following functions:
• patrol, guard, watch or protect property (including cash in transit);
• act as a bodyguard;
• act as a security consultant;
• act as a crowd controller;
• sell security equipment;
• carry out surveys, and inspections, of security equipment;
• give advice about security equipment;
• install, repair, service, monitor and maintain security equipment.

Clause 15 – Temporary licences - provides that a temporary licence authorises the licensee to conduct an activity authorised by an employee licence.

Clause 16 – Licences do not authorise use of firearm – provides that a licence under this Act does not entitle the licensee to use a firearm. The use of firearms and firearms licences are dealt with in the Firearms Act 1996.

Clause 17 – Application for licence – provides that people may apply to the Commissioner for Fair Trading for licences or for a variation of a licence. The application must be signed and accompanied by any information prescribed under the Regulations. The application must state the licence applied for.

Clause 19 – Request for fingerprints – provides that the Commissioner for Fair Trading may, by notice, require an applicant to allow their fingerprints to be taken by a police officer to confirm their identity. This will only occur in cases where there is doubt about the applicant’s identity and their identity cannot be confirmed in any other way.

This provision is based on the existing provision in the Codes allowing fingerprints to be taken to confirm an applicant’s identity.

Clause 20 – Further information from 3^rd parties – provides that the Commissioner for Fair Trading can, by written notice, request a third party, who has an association or connection with the applicant, to provide information for the purposes of licensing. The information may include information about finances.

This provision is based on section 20 of the New South Wales Security Industry Act 1997.

Clause 21 – General suitability criteria – provides that the Commissioner for Fair Trading cannot issue or vary a licence unless satisfied that:
• the applicant is eligible to hold the licence;
• the applicant has completed the required training;
• it is otherwise in the public interest to license the applicant;
• if the applicant is an individual, that the applicant is an adult; and
• the applicant has satisfied the prescribed competency standards.

The term public interest is defined in section 23.

This clause also provides that for applications for a master licence, the applicant includes close associates of the applicant. If the applicant is a corporation then the applicant includes each executive officer of the corporation. If the applicant is a partnership then each partner is an applicant.

Clause 22 – Meaning of close associate for s 21 – provides a definition of close associate for the purposes of section 21 of the Act. Section 21 of the Act provides that for applications for a master licence the applicant includes close associates of the applicant. A close associate is someone:
• who holds or will hold a financial interest, or will be entitled to exercise relevant power over the business, and the Commissioner for Fair Trading is satisfied that the person will be able to exercise significant influence over the conduct of the business; or
• who holds or will hold an executive office in the business.

This section is based on section 5 of the New South Wales Security Industry Act 1997.

Clause 23 – Public interest – provides a definition of public interest for the purposes of section 21 of the Act. This clause provides that in determining whether it is in the public interest to licence someone, the Commissioner for Fair Trading must consider whether the applicant has committed a relevant offence. The term relevant offence is defined in the dictionary as an offence against:
• this Act;
• the Criminal Code;
• the Crimes Act 1900;
• the Firearms Act 1996;
• the Crimes Act 1914 (Cth); or
• any Act of the Commonwealth or a State corresponding to those above.

In determining whether it is in the public interest to licence an applicant the Commissioner for Fair Trading can consider any other relevant matter, including information obtained under clause 20. For example, it may not be in the public interest to licence a person who does not have a working visa.

Clause 24 – Eligibility for employee and trainer licences – provides that a person is only eligible for an employee or trainer licence if they are an individual who is employed by the holder of a master licence, or are self-employed and hold a master licence.

Clause 25 – Decision on application for licence other than temporary licence – provides that on application for a licence the Commissioner for Fair Trading may issue the licence or refuse to issue the licence. The Commissioner for Fair Trading may also issue a licence subject to conditions.

Clause 26 – Temporary licences – provides that the Commissioner for Fair Trading may issue temporary licences for trainees who are not eligible for an employee licence due to their age, or not having completed the requisite training. A person is only eligible for a temporary licence if the Commissioner for Fair Trading is satisfied that the applicant will be under the direct supervision of a licensee authorised to carry on the same activity as the holder of the temporary licence.

Clause 27 – Decision on application for variation – provides that on application for a variation of a licence the Commissioner for Fair Trading must either vary the licence or refuse to vary the licence.

Clause 28 – Form of licence – provides that the licence must be signed by the licensee, state the licence category and subclasses, have a unique identifying number and contain any other information prescribed under the Regulations.

Clause 29 – Term of licence – provides that licences can be issued for a maximum period of one year.

Clause 30 – Grounds for disciplinary action – provides the following grounds for disciplinary action in relation to a licence:
• the licensee is not eligible to apply for, or be issued with the licence;
• the licensee supplied information in their application for the licence that was false or misleading in a material particular;
• the licensee has contravened this Act;
• the licensee has contravened a condition of their licence;
• the licensee has committed a relevant offence;
• it is not otherwise in the public interest for the licensee to be licensed; or
• another ground specified in the Regulations.

Clause 31 – Action commissioner may take – provides that if the Commissioner for Fair Trading considers that grounds for disciplinary action exist or are likely to exist, then the Commission can apply to the Consumer and Trader Tribunal for the cancellation or suspension of the licence. The commissioner can also apply for other disciplinary action to be taken against the licensee. The other types of disciplinary action will be specified in the legislation establishing the Consumer and Trader Tribunal.

Clause 32 – Action tribunal may take – provides that the Consumer and Trader Tribunal may cancel or suspend a licence if satisfied on reasonable grounds that there are grounds for disciplinary action in relation to the licence. The Tribunal can also take other action set out in the legislation establishing the Consumer and Trader Tribunal. The grounds for disciplinary action are set out in clause 30 of the Act.

Clause 33 – Effect of suspension – provides that a suspended licence does not authorise the licensee to carry on a security activity during the suspension.

Clause 34 – Register of licences – provides that the Commissioner for Fair Trading must keep a register of licenses. The register will be available for public inspection at reasonable times.

Clause 35 – Keeping register – provides that the register under clause 34 may include any information on licences that the Commissioner for Fair Trading considers appropriate. The register can be kept in the form of a computer database.

Clause 36 – Reviewable decisions – provides that the following decisions are reviewable decisions:
• a decision to issue a licence (excluding a temporary licence) subject to conditions.
• a decision to refuse to issue a licence (excluding a temporary licence);
• a decision to issue a temporary licence subject to conditions;
• a decision to refuse to issue a temporary licence; or
• a decision to refuse to vary a licence.

Clause 37 – Consumer and trader tribunal to review – provides that the Consumer and Trader Tribunal must review a reviewable decision, as defined in clause 36, on application by the person to whom the decision relates.

Clause 38 – Contravention of licence conditions – provides that it is an offence for a licensee to contravene a condition of their licence. The maximum penalty for this offence is 50 penalty units and/or imprisonment for six months.

This is a strict liability offence. Section 23 of the Criminal Code provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence. Essentially this means that conduct alone is sufficient to make the defendant culpable.

However, under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code makes it clear that other defences may still be available for use in strict liability offences.

This offence is based on section 30 of the New South Wales Security Industry Act 1997.

Clause 39 – Return etc of licences varied, suspended or cancelled - provides that it is an offence for a licensee to fail to surrender a licence within five business days after a suspension or cancellation of the licence takes effect. The maximum penalty for this offence is 20 penalty units. This offence aims to prevent people from giving their licence to another person to use, or from continuing to work in the industry after their licence is suspended or cancelled.

This is a strict liability offence. Section 23 of the Criminal Code provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence. Essentially this means that conduct alone is sufficient to make the defendant culpable.

However, under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code makes it clear that other defences may still be available for use in strict liability offences.

This offence is based on section 31 of the New South Wales Security Industry Act 1997.

This clause also provides that if a licence is amended or varied the Commissioner for Fair Trading must give the person a licence showing the variation.

Clause 40 – Advertising - provides that it is an offence for a person to advertise that they carry on, or can carry on, a security activity without either:
• a licence to carry on the activity; or
• the advertisement containing the person’s licence number.
The maximum penalty for this offence is 30 penalty units.

The term advertisement is defined in this clause to include business cards, brochures,
newsletters or forms.

This is a strict liability offence. Section 23 of the Criminal Code provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence. Essentially this means that conduct alone is sufficient to make the defendant culpable.

However, under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code makes it clear that other defences may still be available for use in strict liability offences.

This offence is based on section 32 of the New South Wales Security Industry Act 1997.

Clause 41 – Licence to be produced on request - provides that it is an offence for a licensee to fail to produce the licensee’s licence for inspection by:
• a police officer;
• an investigator under the Fair Trading (Consumer Affairs) Act 1973; or
• any other person who the licensee has dealings with when carrying on a security activity.
The maximum penalty for this offence is 10 penalty units.

This is a strict liability offence. Section 23 of the Criminal Code provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence. Essentially this means that conduct alone is sufficient to make the defendant culpable.

However, under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code makes it clear that other defences may still be available for use in strict liability offences.

This offence is based on section 35 of the New South Wales Security Industry Act 1997.

Clause 42 – Licence to be worn by licensee - provides that it is an offence for an employee not to wear their licence, with the licence number clearly visible, when carrying on a security activity. The maximum penalty for this offence is 10 penalty units.

This clause allows the Commissioner for Fair Trading to exempt employees from the requirement to wear their licence. The exemptions may apply to people who are ‘undercover’ such as bodyguards.

This is a strict liability offence. Section 23 of the Criminal Code provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence. Essentially this means that conduct alone is sufficient to make the defendant culpable.

However, under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code makes it clear that other defences may still be available for use in strict liability offences.

This offence is based on section 36 of the New South Wales Security Industry Act 1997.

Clause 43 – Licensee not to dispose of licence etc – provides that it is an offence for a licensee to give their licence to anyone else or allows anyone else to use their licence. The maximum penalty for this offence is 50 penalty units and/or six months imprisonment. This offence has a large penalty due to the mischief that can be caused by unlicensed people holding a licence. Holding a security licence may allow the holder to enter private property or find out confidential information about security or property.

This is a strict liability offence. Section 23 of the Criminal Code provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence. Essentially this means that conduct alone is sufficient to make the defendant culpable.

However, under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code makes it clear that other defences may still be available for use in strict liability offences.

This offence is based on section 37 of the New South Wales Security Industry Act 1997.

Clause 44– Prohibition of delegation of functions – provides that it is an offence to delegate the carrying on of a security activity to a person who is not a licensee. The maximum penalty for this offence is 50 penalty units and/or six months imprisonment. This offence has a large penalty due to the mischief that can be caused by unlicensed people carrying out a security activity. In carrying out a security activity the person may enter private property or find out confidential information about security or property. In addition, the person may perform a security activity without having any training on how to safely perform the activity.

This is a strict liability offence. Section 23 of the Criminal Code provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence. Essentially this means that conduct alone is sufficient to make the defendant culpable.

However, under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code makes it clear that other defences may still be available for use in strict liability offences.

This offence is based on section 38 of the New South Wales Security Industry Act 1997.

Clause 45 – Master licensee not to employ unlicensed people - provides that it is an offence for a master licence to employ a person to carry out a security activity who is not licensed to carry on the activity. The maximum penalty for this offence is 50 penalty units and/or six months imprisonment. This offence has a large penalty due to the mischief that can be caused by unlicensed people carrying out a security activity. In carrying out a security activity the person may enter private property or find out confidential information about security or property. In addition, the person may perform a security activity without having any training on how to safely perform the activity.

This is a strict liability offence. Section 23 of the Criminal Code provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence. Essentially this means that conduct alone is sufficient to make the defendant culpable.

However, under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code makes it clear that other defences may still be available for use in strict liability offences.

This offence is based on section 39 of the New South Wales Security Industry Act 1997.

Clause 46 – Directions to licensees about insurance etc – contemplates provision of written directions by the Minister to security employers, with respect to insurance and risk management. This provision reflects the fact that some employers currently in the security industry are having difficulties in finding insurance, and many do not have risk management plans.

This provision is based on section 11 of the Civil Law (Wrongs) Act 2002.

Clause 47 – Licensee to keep commissioner informed – provides that a licensee must tell the Commissioner for Fair Trading, as soon as practicable, of changes to details on the licence or in the application for the licence. A failure to inform the Commissioner is an offence. The maximum penalty for this offence is 5 penalty units.

This is a strict liability offence. Section 23 of the Criminal Code provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence. Essentially this means that conduct alone is sufficient to make the defendant culpable.

However, under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code makes it clear that other defences may still be available for use in strict liability offences.

Clause 48 – Payment of fees charged by unlicensed people – provides that an unlicensed person cannot sue for, recover or keep a fee charged for providing security services.

This provision is based on section 41 of the New South Wales Security Industry Act 1997.

Clause 49 – Certificates as evidence – provides that a certificate signed by the Commissioner for Fair Trading can be used as evidence that a stated person was, or was not, licensed at a particular time, and any conditions on the licence.

Clause 50 – Determination of fees – provides that the Minister may determine any necessary fees. The Ministerial determination is a disallowable instrument for the purposes of the Legislation Act 2001.

Clause 51 – Approved forms – provides that the Commissioner for Fair Trading may approve in writing any necessary forms. This clause also stipulates that where there is an approved form it must be used.

An approved form is a notifiable instrument under the Legislation Act 2001.

Clause 52 – Regulations – provides the power for the Executive to make any necessary regulations for the purposes of this Act.

Some of the issues that could be included in regulations are:
• the requirements for the keeping of a register of licences, and the content of the register;
• the accreditation of trainers and instructors to conduct training courses;
• the equipment to be defined as security equipment;
• methods and practices for the security industry;
• standards for the security industry – such as service quality and equipment standards; and
• training requirements for the different categories of licence.

There is also provision for the regulations to include offences for contraventions of the regulations with a maximum penalty of 20 penalty units.

Clause 53 – Act and regulations amended – sch 1 – provides that the Acts and Regulations listed in Schedule 1 are amended. Schedule 1 amends the Fair Trading (Consumer Affairs) Act 1973 and the Fair Trading Regulations to remove references to the existing Codes of Practice for the security industry and provide that inspectors under the Fair Trading (Consumer Affairs) Act 1973 can use their powers to investigate complaints about the security industry.

Clause 54 – Definitions for pt 6 – provides definitions for part 6 of the Act dealing with transitional matters.

Clause 55 – All codes – principal – provides that principals registered under a Code are deemed to hold a master licence under this Act.

Clause 56 – ACI Code – employee - provides that employees under the Access Control Industry Code of Practice are deemed to hold an employee licence entitling the person to:
• act as a security consultant;
• sell security equipment;
• carry out surveys and inspections of security equipment;
• give advice about security equipment; and
• install, repair, service and maintain security equipment.

Clause 57 – BI Code – employee - provides that employees under the Bodyguard Industry Code of Practice are deemed to hold an employee licence entitling the person to act as a bodyguard.

Clause 58 – CMI Code – employee - provides that employees under the Crowd Marshals Industry Code of Practice are deemed to hold an employee licence entitling the person to act as a crowd controller.

Clause 59 – CTI, GPSI Code – employee - provides that employees under the Cash Transit Industry Code of Practice and the Guard and Patrol Services Industry Code of Practice are deemed to hold an employee licence entitling the person to patrol, guard, watch or protect property.

Clause 60 – People taken to be licensed under pt 6 - provides that people deemed to have licences under this part are deemed to have satisfied the training requirements for the first renewal of their licence after the commencement of this Act. However, new people entering the industry will be required to comply with the new training requirements from the date the Act commences.

Clause 61 – Modification of pt 6’s operation – provides that the Regulations may modify the transitional provisions of this Act. The Regulations cannot make changes of a policy nature or changes to the Act which are more then savings or transitional matters.

Provisions of this kind have been included in several recent pieces of legislation, including the Road Transport (Public Passenger Services) Act 2001, the Race and Sports Bookmaking Act 2001, the Legislation Act 2001, the Civil Law (Wrongs) Act 2002 and the Food Act 2001.

This clause expires one year after it commences.

Clause 62 – Expiry of pt 6 – provides that Part 6 (excluding clause 61) dealing with transitional matters expires three years after the commencement of the Act.

Schedule 1 – Act and regulations amended - amends the Fair Trading (Consumer Affairs) Act 1973, the Court Security Act 2001 and the Fair Trading Regulations to remove references to the existing Codes of Practice for the security industry and provide that inspectors under the Fair Trading (Consumer Affairs) Act 1973 can use their powers to investigate complaints about the security industry.