South Australia: Security and Investigation Industry Act 1995 (SA)

South Australia Security and Investigation Industry Act 1995 An Act to regulate security and investigation agents, process servers, security industry trainers and security industry training providers; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Application of Act 4A Application of National Vocational Education and Training Regulator Act 2011 of the Commonwealth 5 Commissioner to be responsible for administration of Act 5A Enforcement 5B Criminal intelligence Part 2—Licences 6 Obligation to be licensed 7 Grant of licence 7A Licence conditions 7B Duration of licence 7C Annual fee and return 7D Surrender of licence 8 Application for licence 8A Applications for security agents licence or security industry trainers licence to be furnished to Commissioner of Police 9 Determination of application for licence 11 Appeals 11A Power of Commissioner to require photograph and information 11B Licence endorsements Part 3—Regulation of activities 12A Employment of security agents or investigation agents 13 Operation of licensed agent's business 14 Accounts of licensed agent 15 Licensed agent not to purport to have powers outside licence 16 Prohibition against assisting another to pretend to be agent 17 Misrepresentation 18 Name in which licensed agent may carry on business 19 Publication of advertisements by licensed agent 20 Licence or identification to be carried or displayed 21 Limitations on settling claims relating to motor vehicles 22 Repossession of motor vehicles to be reported 23 Entitlement to be process server 23AAA Entitlement to provide security industry training 23AA Requirement to engage licensed security industry trainer Part 3A—Regulation of security agents and security industry trainers Division A1—Cancellation, suspension or variation of licence where eligibility criteria no longer met 23AB Commissioner may cancel, suspend or impose conditions on licence Division 1—Other suspensions and cancellations 23A Circumstances in which Commissioner may suspend security agents licence or security industry trainers licence 23B Circumstances in which Commissioner must suspend security agents licence 23C Content of suspension notice 23D Service of suspension notice 23E Appeal 23G Cancellation of licence 23H Review of licence Division 2—Alcohol and drug testing of agents authorised to control crowds 23I Definitions for this Division 23J Security agent authorised to control crowds may be required to undertake drug testing 23K Security agent authorised to control crowds may be required to undertake alcohol testing 23L Concentration of alcohol in breath taken to indicate concentration of alcohol in blood 23M Evidence etc 23N Commissioner of Police must report results of breath analysis to Commissioner 23O Cancellation of licence 23P Surrender of licence 23Q Appeal Division 3—Firearms 23R Effect of suspension, cancellation or variation of firearms licence Division 4—Other requirements 23S Security agents, security industry trainers or directors may be required to provide fingerprints 23T Security agent authorised to control crowds may be required to take part in psychological assessment or to undertake training Part 4—Discipline 24 Interpretation of Part 4 25 Cause for disciplinary action 26 Complaints 27 Hearing by Court 27A Procedure in the case of complaint against security agent or security industry trainer 28 Participation of assessors in disciplinary proceedings 29 Disciplinary action 30 Contravention of orders Part 5—Miscellaneous 31 Delegations 32 Agreement with professional organisation 33 Exemptions 34 Register of licensed agents, security industry trainers and security industry training providers 35 Commissioner and proceedings before Court 36 Return of licences 36AA Taking of fingerprints 36A Destruction of fingerprints 36B Immunity 37 False or misleading information 38 Statutory declaration 39 Commissioner of Police to conduct investigations and make available relevant information 40 General defence 41 Liability for act or default of officer, employee or agent 42 Offences by bodies corporate 43 Continuing offence 44 Prosecutions 45 Evidence 46 Service of documents 47 Annual report 48 Regulations Schedule 1—Appointment and selection of assessors for Court Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Security and Investigation Industry Act 1995. 3—Interpretation (1) In this Act, unless the contrary intention appears— agent means a security agent, an investigation agent or a process server; approved psychological assessment means a form of psychological assessment approved by the Commissioner for the purpose of determining whether a person is fit and proper to hold a security agents licence; Commissioner means the Commissioner for Consumer Affairs; controlling crowds—the function of controlling crowds includes screening persons seeking to enter a place and managing persons who behave in a disorderly manner or create a nuisance; Court means the Administrative and Disciplinary Division of the District Court of South Australia; criminal intelligence means information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety; director of a body corporate includes— (a) a person occupying or acting in the position of director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and (b) any person in accordance with whose directions or instructions the directors or members of the governing body of the body corporate are accustomed to act; and (c) a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the body corporate or who has the capacity to affect significantly the body corporate's financial standing; employee condition—see section 7A(1)(b); employee (supervision) condition—see section 7A(1)(c); firearm has the same meaning as in the Firearms Act 2015; firearms licence has the same meaning as in the Firearms Act 2015; fit and proper person—see subsection (2); holder of a security agents licence includes the holder of a security agents licence that has been suspended; investigation agent means a person who performs one or more of the following functions for fee or reward: (a) ascertaining the whereabouts of or repossessing goods that are subject to a security interest; (b) collecting or requesting the payment of debts; (c) executing legal process for the enforcement of a judgment or order of a court; (d) executing distress for the recovery of rates, taxes or money; (e) obtaining or providing (without the written consent of a person) information as to the personal character or actions of the person or as to the business or occupation of the person; (f) searching for missing persons; (g) obtaining evidence for the purpose of legal proceedings (whether the proceedings have been commenced or are prospective); investigation agents licence means a licence under this Act authorising a person to act as an investigation agent; loss adjuster means a person who performs one or more of the following functions: (a) investigating loss or injury arising from the use of a motor vehicle or personal injury arising out of or in the course of the employment of the person by whom the injury was sustained; (b) obtaining evidence for the purpose of legal proceedings in respect of such loss or injury; (c) assessing pecuniary compensation or damages likely to be awarded in respect of such loss or injury; (d) making, commencing, resisting, negotiating, compromising or settling a claim in respect of such loss or injury; partnership (business only) condition—see section 7A(1)(e); partnership condition—see section 7A(1)(d); process server means a person who, for fee or reward, serves a writ, summons or other legal process; restricted functions condition—see section 7A(1)(a) and (2); security agent means a person who performs one or more of the following functions for fee or reward: (a) protecting or guarding a person or property or keeping a person or property under surveillance; (ab) hiring out or otherwise supplying persons for the purpose of protecting or guarding a person or property or keeping a person or property under surveillance; (b) hiring out or otherwise supplying dogs or other animals for the purpose of protecting or guarding property; (c) preventing, detecting or investigating the commission of an offence in relation to a person or property; (ca) hiring out or otherwise supplying persons for the purpose of preventing, detecting or investigating the commission of an offence in relation to a person or property; (d) controlling crowds; (da) hiring out or otherwise supplying persons for the purpose of controlling crowds; (e) providing advice on security alarm or surveillance systems; (f) hiring out or otherwise supplying security alarm or surveillance systems or persons to provide advice on security alarm or surveillance systems; (g) installing or maintaining security alarm or surveillance systems; (h) hiring out or otherwise supplying persons for the purpose of installing or maintaining security alarm or surveillance systems; security agents licence means a licence under this Act authorising a person to act as a security agent; security alarm or surveillance system means electronic or other devices designed, constructed or adapted to give warning of or monitor or record unauthorised entry or misconduct on premises or parts of premises; security industry trainer means a person who personally provides security industry training; security industry trainers licence means a licence under this Act authorising a person to act as a security industry trainer; security industry training means— (a) training designed to provide a person with a qualification determined by the Commissioner to be required for a person to be eligible to hold a security agents licence (other than a licence authorising only the performance of functions relating to security alarm or surveillance systems); or (b) training designed to meet the requirements of a training condition to which a security agents licence (other than a licence authorising only the performance of functions relating to security alarm or surveillance systems) may be made subject; or (c) training required by the Commissioner to be completed by the holder of a security agents licence that authorises the licensee to perform the function of controlling crowds; or (d) training of a kind prescribed by the regulations; Note— Paragraph (b) had not come into operation at the date of the publication of this version. security industry training provider means a person who carries on a business of providing security industry training; security interest means any interest in or power over goods that secures payment of a debt or performance of any other obligation; temporary licence—see section 7(2); training condition—see section 7A(1)(f). Note— Definitions of temporary licence and training condition had not come into operation at the date of the publication of this version. (2) For the purposes of this Act, the following provisions govern whether a person is a fit and proper person to hold a licence or to be the director of a body corporate that holds a licence: (a) a person is not a fit and proper person to hold a licence or to be the director of a body corporate that holds a licence if— (i) the person has been found guilty or convicted of an offence as prescribed by the regulations; or (ii) the person is suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; (b) in deciding whether a person is a fit and proper person to hold an investigation agents licence, or to be the director of a body corporate that is the holder of an investigation agents licence, regard may be had to— (i) the reputation, honesty and integrity of the person; and (ii) any other factor relevant to the performance of the functions authorised or to be authorised by the licence, including any relevant offence (not prescribed by the regulations) of which the person has been convicted or found guilty; (c) in deciding whether a person is a fit and proper person to hold a security agents licence, or to be the director of a body corporate that is the holder of a security agents licence, regard must be had to— (i) the reputation, honesty and integrity of the person; and (ii) the reputation, honesty and integrity of people with whom the person associates; and (iii) if the licence authorises or is to authorise the licensee to personally perform the function of controlling crowds— (A) the results of any psychological assessment of the person under this Act; and (B) any evidence that the person has contravened a provision of the Gaming Machines Act 1992 or the Liquor Licensing Act 1997 relating to the prevention of a person from entering, or the removal of a person from, licensed premises (within the meaning of the Liquor Licensing Act 1997); and (iv) any other factor relevant to the performance of the functions authorised or to be authorised by the licence, including any relevant offence (not prescribed by the regulations) of which the person has been convicted or found guilty; (d) in deciding whether a person is a fit and proper person to hold a security industry trainers licence, regard must be had to— (i) the reputation, honesty and integrity of the person; and (ii) the reputation, honesty and integrity of people with whom the person associates; and (iii) any other factor relevant to the performance of the functions authorised or to be authorised by the licence, including any relevant offence (not prescribed by the regulations) of which the person has been convicted or found guilty. 4—Application of Act This Act does not apply to— (a) a police officer; (ab) police security officers appointed under the Police Act 1998 while performing official functions; (b) a sheriff, deputy sheriff, sheriff's officer, bailiff or other officer of a court or tribunal, while performing official functions; (c) an officer or employee of the Crown or any instrumentality of the Crown while performing official functions; (d) an officer or employee of a council within the meaning of the Local Government Act 1999, or a body vested with the powers of a council, while performing official functions; (e) any of the following: (i) a person who holds prescribed qualifications in loss adjusting while practising as a loss adjuster; (ii) a body corporate while carrying on business as a loss adjuster under the management of a natural person who is resident in the State and holds prescribed qualifications in loss adjusting; (iii) a person employed under a contract of service by a person or body referred to in subparagraph (i) or (ii) while acting in the ordinary course of that employment; (f) any of the following: (i) a person who practises as a legal practitioner; or (ii) a person who holds prescribed qualifications in accountancy and practises as an accountant; or (iii) a person registered as an agent under the Land Agents Act 1994; or (iv) a company authorised by special Act of Parliament to act as a trustee; or (v) an ADI; or (vi) a society registered under the Co-operatives Act 1997; or (vii) a friendly society; or (viii) a person lawfully carrying on the business of providing credit within the meaning of the National Credit Code in Schedule 1 to the National Consumer Credit Protection Act 2009 of the Commonwealth; or (ix) a person who lawfully carries on the business of banking or insurance or the business of an insurance intermediary (within the meaning of the Insurance Contracts Act 1984 of the Commonwealth), while acting in that capacity in the ordinary course of the profession or business; (g) a person employed under a contract of service by a person or body referred to in paragraph (f) while acting in the ordinary course of that employment; (h) a person employed under a contract of service who acts as an agent only as an incidental part of the duties of that employment, including, for example— (i) a person employed as a resident caretaker who acts as a security agent by keeping property under surveillance only as an incidental part of the duties of that employment; (ii) a person employed as a shop assistant who acts as a security agent by providing advice on security alarm or surveillance systems only as an incidental part of the duties of that employment; (i) a person who performs only clerical or secretarial functions on behalf of an agent; (j) a person employed under a contract of service by a licensed investigation agent who acts as an agent only by requesting the payment of debts by telephone calls made from the agent's place of business while under the supervision of the agent. 4A—Application of National Vocational Education and Training Regulator Act 2011 of the Commonwealth (1) The State security industry regulation provisions are declared to be an excluded matter for the purposes of section 10 of the Commonwealth Act in relation to section 9 of the Commonwealth Act to the extent only that section 9 prevents the application of the State security industry regulation provisions to a NVR registered training organisation (within the meaning of the Commonwealth Act) providing training, assessment or instruction in relation to the performance of the functions of a security agent. (2) In this section— Commonwealth Act means the National Vocational Education and Training Regulator Act 2011 of the Commonwealth; State security industry regulation provisions means— (a) the provisions under this Act— (i) regulating security industry training providers; and (ii) providing for the approval of security industry training providers; and (iii) relating to the approval of training, assessment or instruction provided by security industry training providers; and (b) the provisions under this Act and any other Act, providing for the exercise of investigative powers, sanctions and enforcement for the purposes of this Act in relation to such matters. 5—Commissioner to be responsible for administration of Act The Commissioner is responsible, subject to the control and directions of the Minister, for the administration of this Act. 5A—Enforcement (1) The powers of authorised officers under sections 77 to 78C (inclusive) of the Fair Trading Act 1987 may be exercised by police officers for the enforcement of this Act, and those sections apply for that purpose as if police officers were authorised officers. 5B—Criminal intelligence (1) No information provided by the Commissioner of Police to the Commissioner may be disclosed to any person (except the Minister, a court or a person to whom the Commissioner of Police authorises its disclosure) if the information is classified by the Commissioner of Police as criminal intelligence. (2) If the Commissioner— (a) refuses an application for a security agents licence or security industry trainers licence or an approval as a security industry training provider, or imposes a condition on or suspends a security agents licence or security industry trainers licence; and (b) the decision to do so is made because of information that is classified by the Commissioner of Police as criminal intelligence, the Commissioner is not required to provide any grounds or reasons for the decision other than that to grant the application would be contrary to the public interest, or that it would be contrary to the public interest if the licence were to continue in force without the condition, or that it would be contrary to the public interest if the licensee were to continue to be licensed. (3) If the Commissioner of Police objects to an application under section 8A because of information that is classified by the Commissioner of Police as criminal intelligence, the Commissioner must, as soon as reasonably practicable after receiving the notice of objection, instead of serving a copy of the notice of objection on the applicant, advise the applicant in writing that the Commissioner of Police has objected to the application on the ground that to grant the application would be contrary to the public interest. (4) If the Commissioner or the Commissioner of Police lodges a complaint under Part 4 because of information that is classified by the Commissioner of Police as criminal intelligence, the complaint need only state that it would be contrary to the public interest if the person specified in the complaint were to be or continue to be licensed. (5) In any proceedings under this Act, the Commissioner or the Court— (a) must, on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and (b) may take evidence consisting of or relating to information classified by the Commissioner of Police as criminal intelligence by way of affidavit of a police officer of or above the rank of superintendent. (6) The Commissioner of Police may not delegate the function of classifying information as criminal intelligence for the purposes of this Act except to a Deputy Commissioner or Assistant Commissioner of Police. Part 2—Licences 6—Obligation to be licensed (1) A person must not— (a) carry on business, or otherwise act, as a security agent or investigation agent except as authorised by a licence under this Part; or (ab) personally provide security industry training except as authorised by a licence under this Part; or (b) advertise or otherwise hold himself or herself out as being entitled to carry on business, or to otherwise act, as a security agent or investigation agent or to personally provide security industry training unless authorised to so act by a licence under this Part. Maximum penalty: (a) for an offence committed by a natural person— (i) for a first or second offence—$50 000; or (ii) for a third or subsequent offence—$50 000 or 12 months imprisonment or both; or (b) for an offence committed by a body corporate—$250 000. (2) A person required to be licensed as an agent is not entitled to any fee or other consideration in respect of functions performed in the course of carrying on business as an agent unless— (a) the person was authorised by a licence to perform the functions in the course of carrying on business as an agent; or (b) a court hearing proceedings for recovery of the fee or other consideration is satisfied that the person's failure to be so authorised resulted from inadvertence only. 7—Grant of licence (1) Subject to this Act, the Commissioner may, on application by a person, grant a security agents licence, an investigation agents licence or a security industry trainers licence to the person. (2) The Commissioner may, at the applicant's request, grant the licence (a temporary licence) for a limited term (not exceeding 12 months). Note— Subsection (2) had not come into operation at the date of the publication of this version. 7A—Licence conditions (1) A security agents licence or an investigation agents licence may be subject to a condition or conditions of the following kinds: (a) restricted functions condition: a condition limiting the functions that may be performed under the authority of the licence; (b) employee condition: a condition preventing the holder of the licence from carrying on business as an agent; (c) employee (supervision) condition: if the licence is subject to an employee condition, a condition requiring the holder of the licence to perform functions as an agent only under the supervision of a natural person who holds and has held, for a minimum period specified by the Commissioner in writing, a licence authorising the person to perform those functions personally without supervision; (d) partnership condition: a condition preventing the holder of the licence from carrying on business as an agent except in partnership with a person specified in the licence or some other person approved by the Commissioner; (e) partnership (business only) condition: if the licence is subject to a partnership condition, a condition preventing the holder of the licence from personally performing functions as an agent; (f) training condition: a condition requiring the holder of the licence to satisfactorily complete a course of training, or gain experience, within a period, as specified by the Commissioner in writing. (2) A security industry trainers licence may be subject to a condition limiting the functions that may be performed under the authority of the licence (a restricted functions condition). (3) Conditions— (a) may be imposed by the Commissioner— (i) on the grant of the licence; or (ii) at any time on application by the holder of the licence; and (b) may be varied or revoked by the Commissioner at any time on application by the holder of the licence. (4) Without limiting subsection (3), a variation or revocation of a restricted functions condition may effect the expansion or contraction of the functions that may be performed under the authority of the licence. (5) If the Commissioner is not satisfied that a training condition has been complied with, the Commissioner may, by notice in writing to the holder of the licence at any time after the period specified for the satisfactory completion of the course of training or gaining the experience, cancel the licence. Note— Subsections (1)(f) and (5) had not come into operation at the date of the publication of this version. 7B—Duration of licence A licence remains in force (except for any period for which it is suspended) until— (a) the licence is surrendered or cancelled; or (b) the licensed agent or licensed security industry trainer dies or, in the case of a licensed body corporate, is dissolved; or (c) in the case of a temporary licence—the term of the licence expires. Note— Paragraph (c) had not come into operation at the date of the publication of this version. 7C—Annual fee and return (1) A licensed agent or licensed security industry trainer must, each year not later than the date fixed by regulation— (a) pay to the Commissioner the fee fixed by regulation; and (b) lodge with the Commissioner a return in the manner and form required by the Commissioner. (2) If a licensed agent or licensed security industry trainer fails to pay the annual fee or lodge the annual return in accordance with subsection (1), the Commissioner may, by notice in writing, require the agent or trainer to make good the default. (3) If the agent or security industry trainer fails to comply with the notice within a time fixed by the notice (which may not be less than 28 days after service of the notice), the licence of the agent or trainer is cancelled. (4) The Commissioner must notify the agent or trainer in writing of the cancellation of the licence of the agent or trainer. (5) In this section— licensed agent includes a licensed agent whose licence has been suspended but does not include a person who holds a temporary licence; licensed security industry trainer includes a licensed security industry trainer whose licence has been suspended but does not include a person who holds a temporary licence. 7D—Surrender of licence A licensed agent or licensed security industry trainer may surrender the licence. 8—Application for licence (1) An application for a licence must— (a) be made to the Commissioner in the manner and form approved by the Commissioner; and (b) be accompanied by the fee fixed by regulation. (2) An applicant for a licence must provide the Commissioner with such evidence as the Commissioner thinks appropriate as to the identity, age and address of the applicant, or, if the applicant is a body corporate, each director of the body corporate, and any other information required by the Commissioner for the purposes of determining the application. (3) If the Commissioner is not in possession of a suitable photograph of an applicant for a licence who is a natural person, the Commissioner must require an applicant for a licence who is a natural person to attend at a specified place for the purpose of having the applicant's photograph taken or to supply the Commissioner with 1 or more photographs of the applicant as specified by the Commissioner. (3a) Subject to subsection (3b), the Commissioner must require the following persons to make arrangements to have their fingerprints taken: (a) an applicant for a security agents licence or security industry trainers licence who is a natural person; (b) each director of a body corporate that is an applicant for a security agents licence. (3b) The Commissioner need not impose a requirement in respect of fingerprints if the Commissioner is satisfied that the person's fingerprints have been taken (whether in or outside this State) and information relating to the identity, antecedents and criminal history of the person relevant to whether the application should be granted has been provided to the Commissioner. (3c) The Commissioner may require an applicant for a security agents licence authorising the performance of the function of controlling crowds who is a natural person to take part, at the cost of the applicant, in an approved psychological assessment. (4) If an applicant for a licence, or, if the applicant is a body corporate, a director of the body corporate, has previously failed to pay a fee or penalty that became payable under this Act, the Commissioner may require the applicant to pay the whole or a specified part of the fee or penalty. (5) The Commissioner may, by notice in writing, require a person, within a time fixed by the notice (which may not be less than 28 days after service of the notice), to comply with any requirement under this section to the Commissioner's satisfaction. (6) If the person fails to comply with the notice under subsection (5), the Commissioner may, without further notice, refuse the application but keep the fee that accompanied the application. 8A—Applications for security agents licence or security industry trainers licence to be furnished to Commissioner of Police (1) Subject to this section, the Commissioner must, in relation to each application for a security agents licence or security industry trainers licence— (a) give the Commissioner of Police a copy of the application; or (b) notify the Commissioner of Police of the identity of the applicant or, if the applicant is a body corporate, the identity of each director of the body corporate. (1a) The Commissioner need not comply with subsection (1) in respect of a person if— (a) the person is the holder of a security agents licence or security industry trainers licence; or (b) the Commissioner is satisfied that the person has been the subject of a process that substantially corresponds to that required by subsection (1) by reason of being the holder, or the director of a body corporate that is the holder, of an authorisation under the law of another State or a Territory of the Commonwealth that substantially corresponds to a security agents licence or security industry trainers licence. (2) As soon as reasonably practicable following receipt of an application, or information in respect of an application, and the taking of fingerprints if required, the Commissioner of Police— (a) must make available to the Commissioner such information about criminal convictions, and, if fingerprints are taken, about identity, antecedents and criminal history, as the Commissioner of Police considers relevant to whether the application should be granted; and (b) may make available to the Commissioner such other information to which the Commissioner of Police has access and considers relevant to whether the application should be granted. (3) The Commissioner of Police may, following receipt of an application, or information in respect of an application, under subsection (1), object to the application by notice in writing provided to the Commissioner within the prescribed period. (4) A notice of objection under subsection (3) must state grounds for the objection. (5) Subject to section 5B, a copy of the notice of objection must be served by the Commissioner on the applicant as soon as reasonably practicable after the notice is received by the Commissioner. (6) The Commissioner must, before deciding whether to grant or refuse the application, give the applicant a reasonable opportunity to respond to the notice of objection. 9—Determination of application for licence (1) Subject to this Act, a natural person is eligible to be granted a licence if the person, on application to the Commissioner, satisfies the Commissioner that he or she— (a) has the qualifications and experience determined by the Commissioner to be necessary for the purposes of the licence having regard to— (i) the functions proposed to be authorised by the licence; and (ii) whether the applicant has made, or proposes to make, a related application for a firearms licence; and (iii) whether the licence is to be subject to an employee (supervision) condition; and (iv) any other factor considered relevant by the Commissioner; and (d) is a fit and proper person to be the holder of the licence; and (e) in the case of a licence not to be subject to an employee condition— (i) is not an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; and (ii) has not, during the period of five years preceding the application for the licence, been a director of a body corporate that has been wound up for the benefit of creditors— (A) when the body was being so wound up; or (B) within the period of six months preceding the commencement of the winding up; and (iii) has sufficient business knowledge and experience and financial resources for the purpose of properly carrying on business under the licence. (2) Subject to this Act, a body corporate is eligible to be granted a licence if the body corporate, on application to the Commissioner, satisfies the Commissioner that— (a) the body corporate— (i) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and (ii) is not being wound up and is not under official management or in receivership; and (b) no director of the body corporate has, during the period of 5 years preceding the application for the licence, been a director of a body corporate that has been wound up for the benefit of creditors— (i) when the body was being so wound up; or (ii) within the period of 6 months preceding the commencement of the winding up; and (c) the directors of the body corporate together have sufficient business knowledge and experience for the purpose of properly directing the business carried on under the licence; and (d) the body corporate has sufficient financial resources for the purpose of properly carrying on business under the licence; and (e) each director of the body corporate is a fit and proper person to be the director of a body corporate that is the holder of a licence. (3) If, on an application by a person for a licence, the Commissioner— (a) is not satisfied that the applicant meets requirements as to qualifications, business knowledge, experience or financial resources; but (b) is satisfied that the applicant proposes to carry on business as an agent in partnership with a person who does meet the requirements not satisfied by the applicant, the Commissioner may, subject to the other provisions of this section, grant a licence to the applicant subject to a partnership condition. (4) If a licence is to be granted subject to a partnership condition to an applicant who does not have the qualifications and experience required under subsection (1)(a), the licence is also to be subject to a partnership (business only) condition. (5) If the Commissioner of Police has objected under section 8A(3) to an application for a security agents licence or security industry trainers licence, the Commissioner must take into consideration the grounds for the objection when assessing the application. (6) An application for a security agents licence or security industry trainers licence can only be granted if the Commissioner is satisfied that to grant the application would not be contrary to the public interest. (7) An application for a licence need not be determined if the applicant for the licence or a director of a body corporate that is the applicant for the licence is subject to a charge of a prescribed offence. 11—Appeals (1) An applicant for a licence may appeal to the Court against a decision of the Commissioner refusing the application or imposing a condition on the licence. (1aa) The holder of a licence may appeal to the Court against a decision of the Commissioner refusing to vary or revoke a condition of the licence. (1a) The Commissioner of Police may appeal to the Court against a decision of the Commissioner granting an application for a security agents licence or security industry trainers licence. (2) Subject to subsection (4), an appeal must be instituted within one month of the making of the decision appealed against. (3) Subject to section 5B, the Commissioner must, if so required by the applicant or the Commissioner of Police, state in writing the reasons for the Commissioner's decision. (4) If the reasons of the Commissioner are not given in writing at the time of making the decision and the applicant or the Commissioner of Police (within one month of the making of the decision) requires the Commissioner to state the reasons in writing, the time for instituting an appeal runs from the time at which the applicant receives the written statement of those reasons. 11A—Power of Commissioner to require photograph and information (1) The Commissioner may, by notice in writing, require a natural person who is a licensed agent or licensed security industry trainer, within a time fixed by the notice (which may not be less than 28 days after service of the notice)— (a) at least once in every 10 years— (i) to attend at a specified place for the purpose of having the agent's or trainer's photograph taken; or (ii) to supply the Commissioner with one or more photographs of the agent or trainer as specified by the Commissioner; and (b) not more than once in each year—to provide the Commissioner with such evidence as the Commissioner thinks appropriate as to the identity, age and address of the agent or trainer and information about any other specified matters. (2) The Commissioner may, by notice in writing, require a body corporate that is a licensed agent, within a time fixed by the notice (which may not be less than 28 days after service of the notice) but not more than once in each year, to provide the Commissioner with such evidence as the Commissioner thinks appropriate as to the identity, age and address of each director of the body corporate, and information about any other specified matters. (3) If a licensed agent or licensed security industry trainer fails to comply with a notice under subsection (1) or (2), the Commissioner may, by notice in writing, require the agent or trainer to make good the default. (4) If the agent or trainer fails to comply with the notice under subsection (3) within a time fixed by the notice (which may not be less than 28 days after service of the notice), the licence of the agent or trainer is cancelled. (5) The Commissioner must notify the agent or trainer in writing of the cancellation of the licence of the agent or trainer. (6) In this section— licensed agent includes a licensed agent whose licence has been suspended; licensed security industry trainer includes a licensed security industry trainer whose licence has been suspended. 11B—Licence endorsements (1) The regulations may— (a) prescribe what an endorsement on a licence under this Act indicates; and (b) include provisions of a transitional nature on the making, variation or revocation of a regulation prescribing what an endorsement on a licence under this Act indicates, including provisions that require a licence of a specified class to be taken to be endorsed with a particular endorsement or for a particular form of endorsement to be taken to be substituted with another form of endorsement. (2) In legal proceedings, an endorsement on a licence under this Act (whether granted before or after the commencement of a regulation prescribing what the endorsement indicates) will be taken, in the absence of proof to the contrary, to indicate the matter prescribed by the regulations. (3) The Commissioner may, by notice in writing to the holder of a licence under the Act, require the holder to produce the licence for the purposes of including, varying or removing an endorsement. (4) A person who, without reasonable excuse, fails to produce his or her licence in accordance with subsection (3) is guilty of an offence. Maximum penalty: $1 250. Expiation fee: $160. (5) In this section— endorsement means any description, code or image displayed on a licence. Part 3—Regulation of activities 12A—Employment of security agents or investigation agents (1) A person (whether licensed under this Act or not) must not employ another as a security agent or investigation agent under a contract of service to perform functions of a particular kind unless that other person holds a licence authorising him or her to personally perform functions of that kind. Maximum penalty: $20 000. (2) A person (whether licensed under this Act or not) must not engage another to perform the function of controlling crowds unless the person personally performing the function holds a licence authorising him or her to do so. Maximum penalty: $20 000. 13—Operation of licensed agent's business (1) A licensed agent that is a body corporate must ensure that the agent's business is (with respect to the functions authorised by the licence) properly managed and supervised by a natural person who holds a licence authorising the person to perform those functions personally without supervision. Maximum penalty: $20 000. (2) A licensed agent authorised to carry on business under the licence must ensure that functions performed in the course of the business are performed by natural persons who hold licences authorising them to perform those functions personally. Maximum penalty: $20 000. 14—Accounts of licensed agent A licensed agent must keep accounts as required by the regulations. Maximum penalty: $10 000. 15—Licensed agent not to purport to have powers outside licence (1) A licence does not confer on an agent power or authority to act in contravention of, or in disregard of, law or rights or privileges arising under or protected by law. (2) A licensed agent must not hold himself or herself out as having a power or authority by virtue of the licence that is not in fact conferred by the licence. Maximum penalty: $10 000. 16—Prohibition against assisting another to pretend to be agent A person (whether licensed under this Act or not) must not supply or lend a document or form or provide other assistance to another person for the purpose of enabling that other person falsely to pretend to be an agent, or a person who, in the course of a business, performs any of the functions of an agent. Maximum penalty: $10 000. 17—Misrepresentation An agent who makes a false, misleading or deceptive representation, or conceals a material fact, for the purpose of inducing another person to enter into an agreement or contract in connection with the performance of any of the functions of an agent is guilty of an offence. Maximum penalty: $10 000. 18—Name in which licensed agent may carry on business A person must not carry on business as an agent under a licence except in the name appearing in the licence or in a business name registered by the person in accordance with the provisions of the Business Names Registration Act 2011 of the Commonwealth of which the Commissioner has been given prior notice in writing. Maximum penalty: $2 500. 19—Publication of advertisements by licensed agent A person carrying on business as an agent under a licence must not publish, or cause to be published, an advertisement relating to the business (other than an advertisement relating solely to the recruiting of staff) unless the advertisement specifies the name of the agent appearing in the licence or a registered business name in which the agent carries on business as an agent and of which the Commissioner has been given prior notice in writing. Maximum penalty: $2 500. 20—Licence or identification to be carried or displayed (1) A natural person who is a licensed agent must, at all times when performing functions under the licence, carry his or her licence and produce it forthwith if requested to do so by— (a) a police officer; or (b) the Commissioner; or (c) a person appointed as an authorised officer under the Fair Trading Act 1987; or (d) a person with whom the agent has dealings as an agent. Maximum penalty: $1 250. Expiation fee: $160. (2) A natural person who is— (a) a licensed security agent authorised to perform the function of controlling crowds; or (b) an agent of a class specified by the regulations, must comply with the requirements of the regulations about the wearing of identification or a uniform (or both). Maximum penalty: $1 250. Expiation fee: $160. 21—Limitations on settling claims relating to motor vehicles (1) Subject to this section, a person required to be licensed as an agent must not, when acting on behalf of another, settle or compromise or attempt to settle or compromise a claim in respect of loss or injury arising out of the use of a motor vehicle after proceedings have been instituted in a court in respect of that loss or injury. Maximum penalty: $10 000. (2) This section does not apply unless the process by which the proceedings are instituted has been served on the defendant to those proceedings. (3) It is a defence to a charge of an offence against subsection (1) if it is proved that the defendant did not know, and could not by the exercise of reasonable diligence have discovered, that proceedings had been instituted in a court in respect of the loss or injury. 22—Repossession of motor vehicles to be reported An agent who takes possession of a motor vehicle that is subject to a security interest must— (a) as soon as practicable after taking possession of the motor vehicle, inform a police officer on duty at the police station nearest to the place where the agent took possession of the vehicle; and (b) within 24 hours after taking possession of the motor vehicle, deliver or send by post to the police officer in charge of the police station nearest to the agent's address for service1, written particulars in duplicate of the motor vehicle, including particulars of the registered number of the vehicle. Maximum penalty: $2 500. Note— 1 See section 46(2). 23—Entitlement to be process server (1) A natural person must not— (a) carry on business, or otherwise act, as a process server; or (b) advertise or otherwise hold himself or herself out as being entitled to carry on business, or otherwise act, as a process server, unless the person— (c) is qualified in accordance with the regulations; and (d) has not been found guilty or convicted of an offence as prescribed by the regulations. Maximum penalty: $20 000. (2) A process server (whether a natural person or body corporate) must not employ a person as a process server unless the person meets the requirements of subsection (1). Maximum penalty: $20 000. 23AAA—Entitlement to provide security industry training (1) A person must not carry on a business of providing security industry training unless the person has been approved by the Commissioner as a security industry training provider. Maximum penalty: $20 000. (2) The Commissioner must not approve a person as a security industry training provider unless the Commissioner is satisfied that the person, or, if the person is a body corporate, each director of the body corporate, would be a fit and proper person to hold a security industry trainers licence if the person were to apply for such a licence. (3) The Commissioner may withdraw the approval of a person as a security industry training provider by notice in writing to the person if the Commissioner is satisfied that the person or, if the person is a body corporate, a director of the body corporate, would not be a fit and proper person to hold a security industry trainers licence if the person were to apply for such a licence or that the approval was obtained improperly. (4) An application for an approval must— (a) be made to the Commissioner in the manner and form approved by the Commissioner; and (b) be accompanied by the fee fixed by regulation. (5) An applicant for an approval must provide the Commissioner with such evidence as the Commissioner thinks appropriate as to the identity, age and address of the applicant or, if the applicant is a body corporate, each director of the body corporate, and any other information required by the Commissioner for the purposes of determining the application. (6) The Commissioner may require an applicant for an approval, or, if the applicant is a body corporate, a director of the body corporate, to make arrangements to have his or her fingerprints taken. (7) If an applicant for an approval, or, if the applicant is a body corporate, a director of the body corporate, has previously failed to pay a fee or penalty that became payable under this Act, the Commissioner may require the applicant to pay the whole or a specified part of the fee or penalty. (8) The Commissioner may require the holder of an approval as a security industry training provider, or, if the holder is a body corporate, a director of the body corporate— (a) to provide the Commissioner with such evidence as the Commissioner thinks appropriate as to identity, age and address; and (b) to make arrangements to have his or her fingerprints taken. (9) The Commissioner may, by notice in writing, require a person, within a time fixed by the notice (which may not be less than 28 days after service of the notice), to comply with any requirement under this section to the Commissioner's satisfaction. (10) As soon as reasonably practicable after fingerprints have been taken from a person pursuant to a requirement under this section, the Commissioner of Police must make available to the Commissioner such information to which the Commissioner of Police has access about the identity, antecedents and criminal history of the person as the Commissioner of Police considers relevant. (11) If a person fails to comply with a notice under subsection (9)— (a) in the case of a requirement made in connection with an application for an approval—the Commissioner may without further notice, refuse the application but keep any fee that accompanied the application; and (b) in the case of a requirement made in connection with an existing approval—the Commissioner may, by notice in writing, require the person to make good the default. (12) If the holder of an approval is a body corporate and a notice is given under subsection (11)(b) to a director of the body corporate, a copy of the notice must be given by the Commissioner to the body corporate. (13) If a person fails to comply with a notice under subsection (11)(b) within a time fixed by the notice (which may not be less than 28 days after service of the notice), the approval in respect of which the requirement is made is taken to be withdrawn. (14) The Commissioner must notify the holder of the approval in writing of the withdrawal of the approval. 23AA—Requirement to engage licensed security industry trainer A person must not employ or engage another to personally provide security industry training unless that other person holds a security industry trainers licence authorising him or her to personally provide training of the kind to be provided. Maximum penalty: $20 000. Part 3A—Regulation of security agents and security industry trainers Division A1—Cancellation, suspension or variation of licence where eligibility criteria no longer met 23AB—Commissioner may cancel, suspend or impose conditions on licence (1) If the Commissioner is satisfied that events have occurred such that a licensed agent or security industry trainer would not be entitled to be so licensed if the person were to apply for a licence, the Commissioner may, by notice served on the person— (a) cancel the licence; or (b) suspend the licence for a specified period or until the fulfilment of stipulated conditions; or (c) impose conditions on the licence. (2) If, during the suspension of a licence under this section, the Commissioner is satisfied that the facts and circumstances that gave rise to the suspension have altered, the Commissioner may, by further notice specifying the date of termination, terminate the suspension and restore the licence to the person (either in the form in which it existed prior to the suspension or subject to new conditions). (3) A person whose licence is cancelled, suspended or made subject to conditions under this section may appeal to the Court against the decision of the Commissioner to cancel or suspend the licence or to impose the conditions. (4) Subject to subsection (6), an appeal must be instituted within 1 month of the making of the decision appealed against. (5) The Commissioner must, if so required by the appellant, state in writing the reasons for the Commissioner's decision. (6) If the reasons of the Commissioner are not given in writing at the time of making the decision and the appellant (within 1 month of the making of the decision) requires the Commissioner to state the reasons in writing, the time for instituting an appeal runs from the time at which the appellant receives the written statement of those reasons. (7) The Court must hear and determine an appeal under this section as expeditiously as possible. (8) This section applies in relation to conduct occurring before or after the commencement of this section. Division 1—Other suspensions and cancellations 23A—Circumstances in which Commissioner may suspend security agents licence or security industry trainers licence (1) Subject to section 23B, if— (a) the holder of a security agents licence or security industry trainers licence, or a director of a body corporate that is the holder of a security agents licence, is charged with a prescribed offence; or (b) the Commissioner is satisfied, for any other reason, that it would be contrary to the public interest if the holder of a security agents licence or security industry trainers licence were to continue to be licensed, the Commissioner may, by notice in writing to the holder of the licence (a suspension notice), suspend the licence for a specified period or until further notice. (2) Suspension of a licence under this section takes effect immediately on service of a suspension notice advising that the licence has been suspended. (3) A person on whom a suspension notice has been served may, within the period of 21 days following service of the notice, make written representations to the Commissioner as to why his or her security agents licence or security industry trainers licence should not be suspended. (4) The Commissioner must, at the end of the period of 28 days following service of a suspension notice under this section— (a) confirm or revoke the suspension; and (b) advise the holder of the licence in writing of the Commissioner's decision; and (c) if the holder of the licence has surrendered the licence and the Commissioner's decision is to revoke the suspension—return the licence to the holder of the licence. (5) The Commissioner must, in determining whether to confirm or revoke suspension of a security agents licence or security industry trainers licence, have regard to any representations received from the holder of the licence under subsection (3). (6) The Commissioner may, at any time, on his or her own initiative, or on application by a person whose licence is suspended, revoke the suspension of a security agents licence or security industry trainers licence under this section. 23B—Circumstances in which Commissioner must suspend security agents licence (1) If the holder of a security agents licence that authorises the licensee to perform the function of controlling crowds is charged by a police officer or the Director of Public Prosecutions with a prescribed offence, the Commissioner must, by notice in writing to the holder of the licence (a suspension notice), suspend the licence until further notice. (2) Suspension of a licence under this section takes effect immediately on service of a suspension notice advising that the licence has been suspended. (3) Suspension of a licence under this section may not be revoked by the Commissioner unless— (a) the holder of the licence has been found not guilty by a court of the criminal charges relevant to the licence having been suspended, or those charges have been withdrawn or dismissed; and (b) the Commissioner is satisfied that revocation of the suspension would not be contrary to the public interest. (4) The Commissioner must, as soon as reasonably practicable after becoming aware that all charges relevant to suspension of a licence under this section have been finalised— (a) confirm or revoke the suspension; and (b) advise the holder of the licence in writing of the confirmation or revocation; and (c) if the holder of the licence has surrendered the licence and the suspension is revoked—return the licence to the licence holder. 23C—Content of suspension notice (1) A suspension notice must include— (a) subject to section 5B, a statement of the Commissioner's reasons for the suspension; and (b) in the case of a notice under section 23A, a statement that— (i) the Commissioner is required, at the end of 28 days following service of the notice, to confirm or revoke the suspension; and (ii) the holder of the licence may, within 21 days of having received the notice, provide the Commissioner with reasons why the licence should not be suspended; and (c) a direction that the person must, within 7 days of service of the notice, surrender the suspended licence to the Commissioner. (2) A person who, without reasonable excuse, fails to surrender his or her licence in accordance with a direction under subsection (1) is guilty of an offence. Maximum penalty: $2 500. 23D—Service of suspension notice (1) Subject to this section, a suspension notice must be served personally on the person whose licence is to be suspended by the notice. (2) If personal service cannot be effected promptly, it will be sufficient service for the notice— (a) to be left for the person with someone apparently over the age of 16 years; or (b) to be posted in an envelope addressed to the person, at the person's address for service. (3) The person's address for service is the address of which the Commissioner has been last notified in writing by the person as the person's address for service. 23E—Appeal (1) A person whose security agents licence or security industry trainers licence has been suspended under section 23A or 23B may appeal to the Court against the decision of the Commissioner to suspend the licence or any other decision made by the Commissioner under either of those sections in connection with the suspension. (1a) An appeal must be instituted within 1 month of the making of the decision appealed against. (2) The Court must hear and determine an appeal under this section as expeditiously as possible. (3) If an appeal under this section is not determined within 3 months of the commencement of the appeal, the suspension to which the appeal relates will, unless the Court orders otherwise, be stayed until the appeal is finally determined or withdrawn. 23G—Cancellation of licence (1) If the holder of a security agents licence or security industry trainers licence, or a director of a body corporate that is the holder of a security agents licence, is found guilty or convicted of an offence as prescribed by the regulations, the licence is cancelled and the licensee must, within 7 days of that finding, surrender the licence (if it has not already been surrendered) to the Commissioner. (2) A person who, without reasonable excuse, fails to surrender his or her licence in accordance with subsection (1) is guilty of an offence. Maximum penalty: $2 500. 23H—Review of licence (1) If disciplinary action is taken on the prescribed number of occasions within the prescribed period against a person, or a number of persons, employed or otherwise engaged in the business of an agent carrying on business as a security agent, the Commissioner must review the licence of the agent to determine if the licence should be suspended or a complaint lodged in respect of the agent under section 26. (2) In this section— disciplinary action means— (a) suspension or cancellation of a licence under this Part; or (b) disciplinary action under section 29. Division 2—Alcohol and drug testing of agents authorised to control crowds 23I—Definitions for this Division In this Division— alcotest means a test by means of apparatus approved for the purpose of conducting alcotests under the Road Traffic Act 1961; analyst means— (a) a person appointed as an analyst for the purposes of the Road Traffic Act 1961; or (b) a person holding an office of a class approved for the purposes of the Road Traffic Act 1961; approved blood test kit means a kit of a kind declared by the Governor by regulation to be an approved blood test kit for the purposes of the Road Traffic Act 1961; authorised officer means an authorised officer under the Fair Trading Act 1987; breath analysing instrument means apparatus of a kind approved as a breath analysing instrument under the Road Traffic Act 1961; breath analysis means an analysis of breath by a breath analysing instrument; licensee means the holder of a security agents licence that authorises the licensee to perform the function of controlling crowds; prescribed concentration of alcohol means any concentration of alcohol in the blood. 23J—Security agent authorised to control crowds may be required to undertake drug testing (1) A police officer or an authorised officer may, by notice in writing, direct a licensee to attend at a specified time and place for the purpose of undertaking a drug testing procedure to determine the level of any prescribed drug in any form in the blood or urine of the agent. (2) A notice under subsection (1) must specify what sample or samples are to be taken. (2a) In the case of a drug testing procedure that involves the collection of a sample of urine, a police officer or an authorised officer may agree with the licensee on a different time or place to that specified in the notice under subsection (1). (3) A police officer or authorised officer may give directions reasonably required for purposes connected with the administration or enforcement of this section. (4) If a sample of blood or urine given by a licensee under this section is found on analysis to be a non-complying sample (within the meaning of the regulations), the Commissioner or the Commissioner of Police may— (a) determine the costs and expenses of carrying out the analysis; and (b) recover the amount so determined from the licensee as a debt in a court of competent jurisdiction. (5) Regulations may be made under this section— (a) regulating the manner of taking and dealing with samples of blood and urine and their analysis; and (b) providing for certificate evidence for use in any proceedings as to the taking and analysis of any urine or blood sample and the authority of a person to carry out an analysis; and (c) requiring a licensee to produce the prescribed form of identification at the time a sample of blood or urine is taken, and providing that a failure to do so is taken to be a failure to comply with a direction under this section. 23K—Security agent authorised