SECURITY INDUSTRY AMENDMENT ACT 2012 - SCHEDULE 1

This legislation has been repealed.

SECURITY INDUSTRY AMENDMENT ACT 2012 - SCHEDULE 1

SCHEDULE 1 – Amendment of Security Industry Act 1997 No 157

[1] Section 3 Definitions

Omit "or P1F" from paragraph (b) of the definition of "armed security guard" in section 3 (1).

[2] Section 3 (1), definition of "employ"

Omit the definition.

[4] Section 3 (1)

Insert in alphabetical order:

"providing persons" includes employing or subcontracting another person (or arranging by contract, franchise or otherwise with another person) for the purpose of that other person employing or providing persons.

"renewed licence" means a licence that is renewed under section 17.

"temporary excess provision of services permit" means a temporary excess provision of services permit in force under section 40A.

[5] Section 3 (1), definition of "security equipment" and sections 4 (1) (c), (d) (ii), (e) (ii) and (i) and 11

Omit "or watching", ",watch" and ", watching" wherever occurring.

[6] Section 3 (1A)

Insert after section 3 (1):

(1A) In this Act, a reference to a class of licence includes a reference to a subclass of that class of licence.

[7] Section 4 Carrying on a "security activity"

Omit "in any one or more of the following circumstances" from section 4 (1) (c).

Insert instead "including, but not limited to, in any one or more of the following circumstances".

[8] Section 4 (1) (l)

Omit the paragraph.

[9] Section 4 (1) (m)

Omit the paragraph. Insert instead:

(m) providing persons to carry on any security activity referred to in this section,

[12] Section 7 Offence of carrying on unauthorised security activities

Omit "employ or" from section 7 (1).

[13] Section 7 (1) (b)

Omit the paragraph. Insert instead:

(b) the person provides no more persons on any one day than the number of persons authorised by the master licence.

[14] Section 7 (2)

Omit the subsection. Insert instead:

(2) A person must not carry on a security activity (other than providing persons to carry on security activities) unless the person is the holder of a class 1 licence or class 2 licence that authorises the person to carry on the security activity.

Maximum penalty: 500 penalty units or imprisonment for 2 years, or both.

[15] Section 7 (4)

Insert after section 7 (3):

(4) The holder of a temporary excess provision of services permit granted under section 40A does not commit an offence under subsection (1) while acting under and in accordance with the authority conferred by the temporary excess provision of services permit.

[16] Section 9 Classes of licences

Omit section 9 (1) (d).

[17] Section 10 Master licences

Omit section 10 (1) (b)-(d). Insert instead:

(b) class MB--authorises the holder to provide no more than 3 persons on any one day to carry on security activities, each of whom must be the holder of a class 1 or class 2 licence,

(c) class MC--authorises the holder to provide between 4 and 14 persons on any one day to carry on security activities, each of whom must be the holder of a class 1 or class 2 licence,

(d) class MD--authorises the holder to provide between 15 and 49 persons on any one day to carry on security activities, each of whom must be the holder of a class 1 or class 2 licence,

(e) class ME--authorises the holder to provide 50 or more persons on any one day to carry on security activities, each of whom must be the holder of a class 1 or class 2 licence.

[18] Section 10 (3)

Omit "employing or".

[19] Section 11 Class 1 licences

Omit section 11 (1) (g).

[20] Section 12 Class 2 licences

Omit section 12 (1) (c). Insert instead:

(c) class 2C--authorises the licensee to sell, install, maintain, repair and service, and provide advice in relation to, security equipment (including electronic security equipment and barrier equipment) and to act as a locksmith,

[21] Section 12 (1) (e) and (f)

Omit the paragraphs.

[22] Section 12A Provisional licences

Omit the section.

[23] Section 14 Application for licence

Omit section 14 (3)-(5).

[24] Section 15 Restrictions on granting licence--general suitability criteria

Omit section 15 (1) and (2). Insert instead:

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant:

(a) is a fit and proper person to hold the class of licence sought by the applicant, or

(b) is of or above the age of 18, or

(c) has the competencies and experience approved by the Commissioner, or

(d) has undertaken and completed the requisite training, assessment and instruction for the class of licence sought by the applicant, or

(e) is competent to carry on the security activity to which the proposed licence relates, or

(f) is an Australian citizen or a permanent Australian resident.

(2) For the purposes of subsection (1) (d), the requisite training, assessment and instruction for a class of licence is training, assessment and instruction in relation to the carrying on of security activities under a licence of that class:

(a) that is of a kind approved, and to a standard required, by the Commissioner, and

(b) is provided by such persons or organisations as are approved by the Commissioner for the purposes of this section.

(2A) The Commissioner may impose conditions with respect to the provision of training, assessment and instruction by any person or organisation approved by the Commissioner for the purposes of this section.

(2B) A person or organisation approved by the Commissioner for the purposes of this section must comply with any conditions imposed by the Commissioner under subsection (2A).

Maximum penalty:

(a) in the case of a corporation--100 penalty units, or

(b) in the case of an individual--50 penalty units.

(2C) The Commissioner must also refuse to grant an application for a licence if the applicant has supplied information that is (to the applicant's knowledge) false or misleading in a material particular in, or in connection with, the application.

[27] Section 17

Insert after section 16A:

17 Renewal of licence

(1) An application for the renewal of a licence may be lodged with the Commissioner by the holder of the licence no earlier than 8 weeks before the licence ceases (otherwise than by revocation) to be in force (its "expiry").

(2) The application is to be:

(a) in the approved form, and

(b) lodged electronically, by post or in any other approved manner, and

(c) accompanied by a fee prescribed by the regulations.

Note: See sections 18, 21 and 24 in relation to the grant, conditions and terms of renewed licences.

(3) Subsection (1) does not prevent the Commissioner from granting an application for the renewal of a licence lodged no later than 90 days after its expiry on payment of the late fee prescribed by the regulations.

(4) The Commissioner may refuse an application to renew a licence if the Commissioner is satisfied that, if the applicant were applying for a new licence, the application would be required by this Act to be refused.

Note: For example, under section 15 (1) of this Act the Commissioner must refuse an application for a new licence if the Commissioner is not satisfied that the applicant is a fit and proper person to hold the licence or is not competent to carry on the security activity to which the licence relates.

(5) For the purposes of subsection (4), section 15 (6) and (7) apply to an application for renewal of a licence in the same way as they apply to an application for a licence.

(6) Without limiting section 18, the Commissioner may request an applicant for the renewal of a licence to demonstrate, in the manner required by the Commissioner and to the satisfaction of the Commissioner, continuing knowledge and competency in relation to the security activity authorised by the licence before renewal of the licence is granted.

(7) Without limiting section 21 (3), the Commissioner may grant an application for renewal of a licence on the condition that the applicant undertake and complete to the satisfaction of the Commissioner any requisite training, assessment or instruction required by the Commissioner to ensure the licensee has continuing knowledge and competency in relation to the security activity authorised by the licence.

(8) Section 15 (2) and (2A) apply to the requisite training, assessment and instruction under subsection (7) required in relation to an application for the renewal of a licence in the same way as they apply to an application for a licence.

(9) A licence may be renewed under this section on more than one occasion.

(10) Section 12 of the Criminal Records Act 1991 does not apply in relation to an application for the renewal of a licence.

[28] Section 18 Investigation of licence and renewal applications

Insert "or for the renewal of a licence" after "licence" in section 18 (1).

[29] Section 18 (2) (a)

Insert "or palm prints, or both," after "fingerprints".

[30] Section 18 (2) (b)

Omit "been fingerprinted".

Insert instead "provided fingerprints or palm prints".

[31] Section 18 (3) (a)

Insert "or for the renewal of a licence" after "licence".

[32] Section 18 (3) (b)

Insert "or renew" after "grant".

[33] Section 18 (4)

Insert ", palm print" after "fingerprint".

[34] Section 18 (5) (a)

Insert "or palm prints" after "fingerprints".

[35] Section 20 Commissioner may require further information

Insert "or for the renewal of a licence" after "applicant for a licence" in section 20 (1).

[36] Section 20 (1) (b1)

Omit "or a provisional licence".

[37] Section 20 (4) and (8)

Insert "or for the renewal of a licence" after "licence" wherever occurring.

[38] Section 21

Omit the section. Insert instead:

21 Grant and conditions of licence and renewal of licence

(1) The Commissioner may, after considering an application for the grant or renewal of a licence:

(a) grant a licence to, or renew the licence of, the person making the application and nominate a place where the person is to collect the licence or renewed licence, or

(b) refuse to grant a licence or to renew the licence.

(2) A licence confers no right of property and is incapable of being transferred, assigned or mortgaged, charged or otherwise encumbered.

(3) A licence is subject:

(a) to such conditions as may be imposed by the Commissioner (whether at the time the licence is granted or renewed or at any later time), and

(b) to such other conditions as are imposed by this Act or prescribed by the regulations.

(4) A licence is granted or renewed subject to the condition that the person making the application collect the licence or renewed licence from the place nominated by the Commissioner under subsection (1) (a) within 60 days of being notified of the grant or renewal.

[41] Section 23 Master licence--condition relating to provision of certain persons

Omit "employ or".

[42] Section 23AA Special conditions--authority to carry firearms

Omit "or P1F" wherever occurring.

[43] Section 23A Special conditions--uniforms must be worn when carrying firearms

Omit "or P1F" wherever occurring.

[44] Section 23B Special conditions--storage of firearms in certain residential premises

Omit "or P1F" wherever occurring.

[45] Section 23C Special conditions--class P1F licences

Omit the section.

[46] Section 23D Special conditions--dog handling security services

Omit "employ any person to provide" from section 23D (1).

Insert instead "provide any person to carry out".

[47] Section 23D (2) and (3)

Omit the subsections.

[48] Section 23E

Insert after section 23D:

23E Special conditions--class 1 licences A class 1 licence that is granted on application by a person who has not, during the 3 years immediately before the application, been authorised by a class 1 licence to carry on the security activity to which the proposed licence relates is subject to the condition that the person undertake and complete, to the satisfaction of the Commissioner, such training, assessment or instruction as may be required by the Commissioner, within 6 months (or such longer period as the Commissioner allows) of the grant of the licence.

[49] Section 24 Term of licence

Insert "other than a renewed licence" after "licence" in section 24 (1A).

[50] Section 24 (1B)

Insert after section 24 (1A):

(1B) The renewal of a licence comes into force:

(a) if the application for renewal is lodged under section 17 before its expiry and the Commissioner grants the application--on the expiry of the licence, or

(b) if the application for renewal is lodged after its expiry--on the day the Commissioner grants the application for renewal of the licence.

[51] Section 24 (2)

Omit the subsection.

[52] Section 24 (3)

Omit the subsection. Insert instead:

(3) Despite subsection (1), if the person who made the application for a licence or for the renewal of a licence (the "applicant") fails to collect the licence in accordance with the condition set out in section 21 (4):

(a) the licence does not come into force and is taken to have not been granted or renewed, and

(b) for the purposes of section 18 (5), the applicant is taken to be a person who was an applicant for, but was never granted, a licence.

[53] Section 26 Revocation of licence

Insert "or the renewal of the licence" after "licence" in section 26 (1) (b) (i).

[55] Section 27 Variation of licence

Omit "class 1, class 2 or provisional licence" from section 27 (1).

Insert instead "class 1 or class 2 licence".

[56] Section 29 Right to seek review from Administrative Decisions Tribunal

Insert after section 29 (1) (a):

(a1) the refusal or failure of the Commissioner to renew a licence (other than by operation of section 24 (3)),

[57] Section 29 (2)

Insert "or renewal" after "grant".

[58] Section 29 (2)

Insert "or renewed" after "granted".

[59] Section 29 (3)

Omit "or to revoke". Insert instead ", to renew a licence or to revoke".

[60] Section 29 (3) (a)

Omit "section 15 (6)". Insert instead "section 15 (6), 17 (5) or 26 (5)".

[62] Section 29A Offence of permitting employee who is provisional licensee to carry on unsupervised security activity

Omit the section.

[63] Section 29B Certain licensees must be employed by other licensees or visitor permit holders

Omit section 29B (2).

[64] Section 35 Licence to be produced on demand

Insert at the end of the section:

(2) Subsection (1) does not require a licensee to produce a licence that has been lost, stolen, destroyed, defaced or mutilated during the period in which the licensee is waiting for the issue of a replacement licence after notifying the Commissioner of that occurrence, and applying for a replacement licence within 14 days after giving that notification, in accordance with the regulations.

[65] Section 36 Licence to be worn by licensee

Omit "class 1, class 2 or provisional licence" from section 36 (1).

Insert instead "class 1 or class 2 licence".

[66] Section 36 (3)

Insert after section 36 (2):

(3) Subsection (1) does not require a licensee to wear a licence that has been lost, stolen, destroyed, defaced or mutilated during the period in which the licensee is waiting for the issue of a replacement licence after notifying the Commissioner of that occurrence, and applying for a replacement licence within 14 days after giving that notification, in accordance with the regulations.

[67] Section 38 Prohibition of delegation of functions

Omit section 38 (2).

[68] Section 38A

Insert after section 38:

38A Prohibition on unauthorised subcontracting

(1) A master licensee (the "principal") who enters into a contract to provide persons to carry on any relevant security activity with a person (the "client") on or after the commencement of this section must not engage another master licensee (the "subcontractor") to provide those persons on behalf of the principal unless:

(a) the client has expressly agreed in the contract to the provision of the persons by a subcontractor, and

(b) the principal provides the requisite subcontracting particulars in relation to any subcontractor engaged by the principal to the client before requiring payment by the client for the work of such a subcontractor.

Maximum penalty:

(a) in the case of a corporation--200 penalty units, or

(b) in the case of an individual--100 penalty units or imprisonment for 6 months, or both.

(2) A subcontractor providing persons on behalf of the principal must not engage another master licensee ( "further subcontractor") to provide any of the persons to carry on security activities that the principal has engaged the subcontractor to provide unless:

(a) the principal has expressly agreed in the contract with the subcontractor to the provision of the persons by a further subcontractor, and

(b) the subcontractor provides the requisite subcontracting particulars in relation to any further subcontractor engaged by the subcontractor to the principal before requiring payment by the principal for the work of the further subcontractor.

Maximum penalty:

(a) in the case of a corporation--200 penalty units, or

(b) in the case of an individual--100 penalty units or imprisonment for 6 months, or both.

(3) The regulations may exempt any principal or class of principals or relevant security activity from the operation of subsection (1) (b) in such circumstances as may be specified in the regulations.

(4) In this section:

"relevant security activity" does not include the provision of a restricted security keying system.

"requisite subcontracting particulars", in relation to a subcontractor or further subcontractor, means:

(a) the name and master licence number of the subcontractor or further subcontractor, and

(b) any other particulars prescribed by the regulations.

[71] Section 39

Omit the section. Insert instead:

39 Master licensee not to provide unlicensed persons

(1) Without limiting the operation of section 30, the holder of a master licence must not provide any person to carry on any security activity if that person is not the holder of a licence that authorises the person to carry on a security activity of that kind.

Maximum penalty:

(a) in the case of a corporation--1,000 penalty units, or

(b) in the case of an individual--500 penalty units or imprisonment for 2 years, or both.

(2) It is a defence in proceedings for an offence under this section if the master licensee satisfies the court that the master licensee did not know, and could not reasonably have been expected to know, that the person provided by the master licensee did not hold a licence that authorised the person to carry on a security activity of the kind concerned.

[72] Section 39B Master licensee to have "fitness for work" policy

Omit "employ or" and "employed or".

[74] Section 40A

Insert after section 40:

40A Temporary excess provision of services permits

(1) A master licensee may apply to the Commissioner for the grant of a permit (a "temporary excess provision of services permit") authorising the holder of the permit to provide more persons than the number of persons authorised by the master licence on any specified day or on each day within a period specified in the permit.

(2) The application must be in the approved form and be accompanied by the fee and any information and particulars prescribed by the regulations.

(3) The Commissioner may, after considering an application for a temporary excess provision of services permit:

(a) grant the permit, or

(b) refuse to grant the permit.

(4) A permit is to be in the approved form.

(5) A permit is subject to such conditions as may be imposed by the Commissioner (whether at the time the permit is granted or at any later time).

(6) The Commissioner may revoke a permit if the holder contravenes any condition to which the permit is subject.

[77] Section 47 Certificate and other evidence

Omit section 47 (1) (c).

[79] Schedule 2, Part 8

Insert after Part 7:

Part 8 - Provisions consequent on enactment of Security Industry Amendment Act 2012

23 Definitions In this Part:

"amending Act" means the Security Industry Amendment Act 2012 .

"converted licence" means a licence that is taken by the operation of this Part to be a licence of a different class or subclass of licence.

24 Conversion of certain existing subclasses of master licence to new subclasses of master licence On the commencement of this clause, a master licence that, immediately before the amendment made to section 10 (1) by the amending Act, was:

(a) a class MB licence--is taken to be, and to have the authority conferred by, a class MC licence granted under this Act (as amended by the amending Act), and

(b) a class MC licence--is taken to be, and to have the authority conferred by, a class MD licence granted under this Act (as amended by the amending Act), and

(c) a class MD licence--is taken to be, and to have the authority conferred by, a class ME licence granted under this Act (as amended by the amending Act).

25 Conversion of existing class 1G licence to new class 1A licence On the commencement of this clause, a licence that was a class 1G licence immediately before the repeal of section 11 (1) (g) by the amending Act is taken to be, and to have the authority conferred by, a class 1A licence.

26 Conversion of existing class 2E licence to class 2C licence On the commencement of this clause, a licence that was a class 2E licence immediately before the repeal of section 12 (1) (e) by the amending Act is taken to be, and to have the authority conferred by, a class 2C licence.

27 Conversion of existing class 2F licence to class 2C licence On the commencement of this clause, a licence that was a class 2F licence immediately before the repeal of section 12 (1) (f) by the amending Act is taken to be, and to have the authority conferred by, a class 2C licence.

28 Conversion of existing provisional licences to class 1 licences

(1) On the commencement of this clause, a licence that, immediately before the repeal of section 12A by the amending Act, was:

(a) a class P1A licence--is taken to be, and to have the authority conferred by, a class 1A licence granted under this Act, and

(b) a class P1B licence--is taken to be, and to have the authority conferred by, a class 1B licence granted under this Act, and

(c) a class P1C licence--is taken to be, and to have the authority conferred by, a class 1C licence granted under this Act, and

(d) a class P1D licence--is taken to be, and to have the authority conferred by, a class 1D licence granted under this Act, and

(e) a class P1E licence--is taken to be, and to have the authority conferred by, a class 1E licence granted under this Act, and

(f) a class P1F licence--is taken to be, and to have the authority conferred by, a class 1F licence granted under this Act, and

(g) a class P1G licence--is taken to be, and to have the authority conferred by, a class 1A licence granted under this Act.

(2) The holder of a licence referred to in subclause (1) is taken to be a person who has not previously been authorised by a class 1 licence to carry on the security activity to which the licence relates and, accordingly, is subject to section 23E as inserted by the amending Act.

(3) The holder must comply with the conditions set out in section 23E within 12 months of the commencement of that section.

29 Duration of converted licence

(1) A licence converted by the operation of this Part to another class or subclass of licence remains in force (unless sooner surrendered, suspended or revoked) until the end of the period that it would have remained in force under section 24 but for the conversion.

(2) The holder of a converted licence may renew the converted licence in accordance with section 17.

30 Form of converted licence

(1) Section 22 (2) (b), as inserted by the amending Act, does not apply to a converted licence.

(2) The Commissioner may reissue any converted licence with such alterations or endorsements as the Commissioner considers appropriate having regard to the provisions and operation of the amending Act.

31 References to converted licences

(1) A reference in any Act (other than this Act) or statutory instrument, or in any other instrument, or in any contract or agreement, to a licence of a particular class or subclass of licence is to be construed as a reference to the class or subclass of the licence as converted by the operation of this Part.

(2) The conditions to which a converted licence is subject are, subject to the regulations, taken to be conditions imposed by the Commissioner under this Act (as amended by the amending Act) applicable to the class or subclass of the licence on conversion and any such condition may be varied or revoked in accordance with this Act.

32 Proceedings for abolished offences relating to provisional licensees Any proceedings for an offence under a provision of this Act repealed by the amending Act that have been commenced but not finally determined before the repeal of the provision may continue to be dealt with as if the provision had not been repealed.

33 Restriction on granting licence to applicant providing false or misleading information Section 15 (2C), as inserted by the amending Act, applies to applications that have been made but not yet determined by the Commissioner before the insertion of that subsection.

34 Investigation of licence applications--taking of palm prints Anything done or omitted to be done by the Commissioner that would have been validly done or omitted had the amendments made to section 18 of this Act by the amending Act been in force at the time that the thing was done or omitted, is taken to have been validly done or omitted.

35 Licence renewals Section 17, as inserted by the amending Act, extends to licences granted before the insertion of that section.