Security Industry Act 1997 (NSW)

Security Industry Act 1997 No 157 An Act to provide for the licensing and regulation of persons in the security industry; to repeal the Security (Protection) Industry Act 1985; and for related purposes. Part 1 Preliminary 1 Name of Act This Act is the Security Industry Act 1997. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— approved means approved by the Commissioner from time to time. armed security guard means a person who— (a) is employed to carry on a security activity referred to in section 4 (1) (c), and (b) is the holder of a class 1F licence, and (c) in carrying out the activities authorised by that licence, is authorised by a licence under the Firearms Act 1996 to use and possess firearms. close associate is defined in section 5. Commissioner means the Commissioner of Police. enforcement officer means— (a) a police officer, or (b) any other member of the NSW Police Force who is authorised by the Commissioner in writing to exercise the functions of an enforcement officer under this Act. exercise a function includes perform a duty. function includes a power, authority or duty. licence means a licence in force under this Act. licensee means the holder of a licence. master licensee means the holder of a master licence. permanent Australian resident means a person resident in Australia whose continued presence in Australia is not subject to any limitation as to time imposed by or in accordance with law. private investigator is defined in section 4. property includes money and other valuables. provide persons, to carry on a security activity, means— (a) directly providing persons to carry on the security activity, including by employing or subcontracting the persons, or (b) indirectly providing the persons to carry on the security activity through an arrangement with another person, including by contract, franchise or otherwise. renewed licence means a licence that is renewed under section 17. security activity is defined in section 4. security equipment means any of the following— (a) any type of safe or vault, (b) any mechanical, electronic, acoustic or other equipment designed or adapted to provide or enhance security or for the protection of any property, (c) any type of device or equipment prescribed by the regulations for the purposes of this definition, but does not include any type of device or equipment declared not to be security equipment by the regulations. temporary excess provision of services permit means a temporary excess provision of services permit in force under section 40A. Tier 1 condition, Tier 2 condition or Tier 3 condition of a licence—see section 30. visitor permit means a visitor permit in force under this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (1A) In this Act, a reference to a class of licence includes a reference to a subclass of that class of licence. (2) Notes in the text of this Act do not form part of this Act. 4 Carrying on a "security activity" (1) For the purposes of this Act, a person carries on a security activity if the person carries on any one or more of the following activities in the course of conducting a business or in the course of the person's employment— (a) acting as a bodyguard or acting in a similar capacity, (b) acting as a crowd controller, or acting in a similar capacity, by physical or electronic means, (c) patrolling, protecting or guarding any property, by physical means (which may involve the use of dogs or the possession or use of firearms) or by electronic means, including, but not limited to, in any one or more of the following circumstances— (i) carrying on control room operations, (ii) carrying on monitoring centre operations, (iii) carrying on retail loss prevention, (iv) patrolling, protecting or guarding cash (including cash in transit) or other valuables, (v) patrolling, protecting or guarding an airport or any other infrastructure, (c1) acting as a private investigator or acting in a similar capacity, (d) installing, maintaining, repairing or servicing, by physical or electronic means— (i) any security equipment, or (ii) any mechanical, electronic, acoustic or other equipment that the person installing, maintaining, repairing or servicing the equipment purports to be equipment that is designed or adapted to provide or enhance security or for the protection of any property, (e) selling— (i) any security equipment (other than basic household or automotive security items at approved classes of retail outlets), or (ii) any mechanical, electronic, acoustic or other equipment that the person selling the equipment purports to be equipment that is designed or adapted to provide or enhance security or for the protection of any property, (f) selling security methods or principles, (g) selling the services of persons to carry on any security activity referred to in this section, (h) providing advice in relation to security equipment (other than basic household or automotive security items at approved classes of retail outlets), including providing product advice in relation to security equipment, (h1) providing advice in relation to the identification and analysis of security risks and providing solutions or management strategies to minimise security risks, (i) providing advice in relation to any other mechanical, electronic, acoustic or other equipment (other than basic household or automotive security items at approved classes of retail outlets) that the person providing the advice purports to be equipment that is designed or adapted to provide or enhance security or for the protection of any property, (j) providing training or instruction in relation to any security activity referred to in this section, (k) assessing another person's training, instruction or competencies in relation to any security activity referred to in this section, (l) (Repealed) (m) providing persons to carry on any security activity referred to in this section, (n) acting as an agent for, or otherwise obtaining contracts for— (i) the supply of persons to carry on any security activity referred to in this section, or (ii) the supply of any security equipment (other than basic household or automotive security items at approved classes of retail outlets), or (iii) the supply of any security activity referred to in this section, (o) brokering any security activity referred to in this section, by acting or purporting to act as an intermediary to negotiate and obtain any such activity for a person (other than the person's employer or a principal who is not a client of the person) in return for a commission or financial benefit, (p) any other activity, or class of activities, that is connected with security or the protection of persons or property, whether by physical or electronic means, and that is prescribed by the regulations for the purposes of this section. (1A) The regulations may prescribe activities that are not security activities. (2) In this section— basic household or automotive security item has the meaning given by the regulations. bodyguard means a person who is employed or engaged for the purpose of providing close personal protection to another person. crowd controller means a person who, for remuneration, exercises one or more of the following functions at a relevant place as part of the person's regular duties— (a) controlling or monitoring the behaviour of persons to maintain order, (b) screening persons seeking entry, (c) removing persons for behavioural or other reasons, (d) any other function prescribed by the regulations. private investigator means a person who is employed or engaged for the purposes of either or both of the following— (a) the investigation of persons, being any activity carried out by a person on behalf of a second person (not being his or her employer) that involves finding a third person or investigating a third person's business or personal affairs, (b) the surveillance of persons, being any activity carried out by a person on behalf of a second person (not being his or her employer) that involves the surveillance of a third person. relevant place means the following places, but does not include a place prescribed by the regulations as not being a relevant place— (a) licensed premises within the meaning of the Liquor Act 2007, (b) a public entertainment venue, (c) a place at which a public or private event or function is held, (d) a hospital, (e) a quarantine facility, (f) retail premises, (g) a public place. sell includes hire, lease and offer to sell, hire or lease. 5 Meaning of "close associate" (1) For the purposes of this Act, a person is a close associate of an applicant for, or the holder of, a licence if the person— (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder, and by virtue of that interest or power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the conduct of that business, or (b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the licence applicant or holder. (2) In this section— relevant financial interest in relation to a business means— (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise. relevant position means the position of director, manager, and other executive positions and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others— (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position. 6 Application of Act (1) Except as provided by this section, this Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. (2) Any person who is employed in any of the following capacities does not carry on a security activity while, and to the extent that, the person is performing official duties in that capacity or in the course of that employment— (a) a police officer or other member of the NSW Police Force, (b) a police officer of the Commonwealth, another State or a Territory, (c) a member of the armed forces of the Commonwealth. (d) (Repealed) (2A) A person does not carry on a security activity while, and to the extent that, the person is performing official duties in the course of his or her employment by or in any of the following— (a) the New South Wales Crime Commission, (b) the Australian Crime Commission, (c) the Law Enforcement Conduct Commission, (d) the Independent Commission Against Corruption, (e) the Department of Attorney General and Justice as a correctional officer (within the meaning of the Crimes (Administration of Sentences) Act 1999) or a juvenile justice officer, (f) any other agency responsible for the enforcement of criminal laws of the State, of the Commonwealth or of another State or Territory. (2B)–(3) (Repealed) 6AA Exemptions by Commissioner (1) The Commissioner may exempt a person or class of persons from the requirement to hold a licence under section 7(1) or (2) to— (a) provide persons to carry on a security activity, or (b) carry on a security activity. (2) An exemption for a person may be granted— (a) on application by the person, and (b) by written notice given to the person. (3) An exemption for a class of persons is granted by notice published on the NSW Police Force website. (4) An exemption may be subject to conditions. (5) The Commissioner may revoke an exemption at any time. (6) The regulations may— (a) prescribe grounds or other requirements for the granting of an exemption, and (b) prescribe a fee to be paid to the Commissioner on the making of an application for an exemption. 6A Application of Commonwealth National Vocational Education and Training Regulator Act 2011 (1) In this section— Commonwealth Act means the National Vocational Education and Training Regulator Act 2011 of the Commonwealth. State security industry regulation provisions means the provisions of this Act and the regulations— (a) regulating organisations providing training, assessment or instruction in relation to any security activity, and (b) providing for the approval by or under this Act of training, assessment or instruction provided by organisations, and (c) providing for the exercise of investigative powers, sanctions and enforcement by or under this Act in relation to such matters. (2) 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 (Immunity from State and Territory laws) of the Commonwealth Act to the extent only that that section prevents the application of the State security industry regulation provisions to an NVR registered training organisation (within the meaning of the Commonwealth Act) providing training, assessment or instruction in relation to security activities regulated by this Act. (2A) Without limiting subsection (2), each provision of this Act (and of any regulations made under this Act) is declared to be a VET legislation displacement provision for the purposes of section 11 of the Commonwealth Act generally. This subsection extends to any such provision enacted or as amended after the commencement of this subsection. (3) Subsection (2) is taken to have had effect from 1 July 2011. (4) Anything done or omitted to be done before the commencement of subsection (2A) that would have been validly done or omitted if subsection (2A) had been in force at the time is taken, on and from the commencement of subsection (2A), to have been validly done or omitted. Part 2 Licences Division 1 Requirement for licence 7 Offence of carrying on unauthorised security activities (1) A person must not provide persons to carry on security activities unless— (a) the person is the holder of a master licence, and (b) the person provides no more persons on any one day than the number of persons authorised by the master licence. (c) (Repealed) 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) 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. (3) The holder of a visitor permit does not commit an offence under this section while acting under and in accordance with the authority conferred by the visitor permit. (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. 8 Licences do not confer additional powers A licence does not confer on the licensee any function apart from a function authorised by the licence. Division 2 Licence classification 9 Classes of licences (1) A licence may be of one of the following classes— (a) a master licence, (b) a class 1 licence, (c) a class 2 licence, (d) (Repealed) (2) A class of licence may, in accordance with the regulations, be combined with another class of licence into a composite licence that authorises the licensee to carry on more than one kind of security activity. 10 Master licences (1) Master licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows— (a) class MA—authorises the holder, who is a self-employed individual and who holds a class 1 or class 2 licence, or both, to provide the holder's services to carry on security activities, (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 no more than 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 no more than 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. (2) Each class of master licence also authorises the holder to carry on the security activities authorised under a class 2B licence. (3) (Repealed) 11 Class 1 licences (1) Class 1 licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows— (a) class 1A—authorises the licensee to carry on the following activities— (i) to patrol, protect or guard property while unarmed, whether while static or mobile, and (ii) to act as a crowd controller or in a similar capacity, (b) class 1B—authorises the licensee to act as a bodyguard or to act in a similar capacity, (c) class 1C—authorises the licensee to patrol, protect or guard cash-in-transit, (d) class 1D—authorises the licensee to patrol, protect or guard any property with a dog, (e) class 1E—authorises the licensee to patrol, protect or guard any property while carrying on monitoring centre operations, (f) class 1F—authorises the licensee to patrol, protect or guard approved classes of property while armed (but only under the authority of a licence or permit to use or possess firearms under the Firearms Act 1996), (g) (Repealed) (h) any other class prescribed by the regulations—authorises the licensee to carry on the security activity prescribed by the regulations in relation to the prescribed class of licence concerned. (2) The relevant subclass is to be endorsed on each class 1 licence. More than one such subclass may be endorsed on a class 1 licence. (3) A class 1A, class 1B, class 1C, class 1E or class 1F licence does not authorise the licensee to carry on a security activity with a dog. (4) A class 1A licence or a class 1F licence does not authorise the licensee to patrol, protect or guard cash-in-transit. 12 Class 2 licences (1) Class 2 licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows— (a) class 2A—authorises the licensee— (i) to sell security methods or principles, and (ii) to act as a consultant by identifying and analysing security risks and providing solutions and management strategies to minimise those security risks, (b) class 2B—authorises the licensee— (i) to sell, and provide advice in relation to, security equipment, and (ii) to sell the services of persons to carry on any security activity, and (iii) to act as an agent for, or otherwise obtain contracts for, the supply of persons to carry on any security activity, the supply of any security equipment or the supply of any security activity, and (iv) to broker any security activity by acting as an intermediary to negotiate and obtain any such activity for a person in return for a commission or financial benefit, (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, (d) class 2D—authorises the licensee to provide training, assessment or instruction in relation to any security activity, (d1) class 2E—authorises the licensee to act as a private investigator or act in a similar capacity, (e), (f) (Repealed) (g) any other class prescribed by the regulations—authorises the licensee to carry on the security activity prescribed by the regulations in relation to the prescribed class of licence concerned. (2) The relevant subclass is to be endorsed on each class 2 licence. More than one such subclass may be endorsed on a class 2 licence. (3) The authority conferred by a class 2D licence does not extend to training, assessment or instruction in the use of firearms. Note— Trainers and instructors of security guards and security personnel who use firearms in their employment are approved by the Commissioner under the Firearms Regulation 2006 and are required to be licensed under the Firearms Act 1996. (4) (Repealed) 12A, 13 (Repealed) Division 3 Licensing procedures and criteria 14 Application for licence (1) A person may apply to the Commissioner for the grant of a licence. (2) An application must be in the approved form and— (a) be accompanied by the fee prescribed by the regulations, and (b) be supported by such information and particulars as may be prescribed by the regulations. (3)–(5) (Repealed) (6) Section 12 of the Criminal Records Act 1991 does not apply in relation to an application for a licence. 15 Restrictions on granting licence—general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if— (a) the applicant is under 18 years of age, or (b) the applicant— (i) is a registrable person or corresponding registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000, and (ii) has reporting obligations under that Act, or (c) the applicant has supplied information— (i) in, or in connection with, the application, and (ii) that is, to the applicant's knowledge, false or misleading in a material particular, or (d) the applicant is not an Australian citizen or a permanent Australian resident and does not hold— (i) a visa for which the applicant has been sponsored by the holder of a master licence, or (ii) a visa for a skilled occupation to which the activities authorised by the proposed licence correspond, or (e) the applicant is prohibited under section 16B from making the application, or (f) the Commissioner is not satisfied that the applicant— (i) is a fit and proper person to hold the class of licence sought by the applicant, or (ii) has the approved competencies and experience, or (iii) has undertaken and completed the training, assessment and instruction approved for the class of licence sought by the applicant, or (iv) is competent to carry on the security activity to which the proposed licence relates. (2)–(2C) (Repealed) (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. (5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant or whether the grant of the licence would be contrary to the public interest, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that— (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. (7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6). (8) (Repealed) 16 Restrictions on granting licence—criminal and other related history (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant— (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or (b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or (c) has, within the period of 5 years before the application for the licence was made, had a civil penalty imposed on the applicant by a court or tribunal in New South Wales or elsewhere, being a civil penalty prescribed by the regulations in relation to the class of licence sought, or (d) has, within the period of 10 years before the application for the licence was made, been removed or dismissed from the NSW Police Force or from the police force of any other jurisdiction (whether in Australia or overseas) on the ground of the applicant's integrity as a police officer. (2) Without limiting subsection (1), the Commissioner may refuse to grant an application for a licence if the Commissioner is satisfied that the applicant has a conviction that is not capable of becoming spent. Note— Under section 7 of the Criminal Records Act 1991, certain convictions are not capable of becoming spent. For example, convictions for which a prison sentence of more than 6 months has been imposed, convictions for certain sexual offences and convictions prescribed by the Criminal Records Regulation 2004. (3) The Commissioner must refuse to grant an application for a licence if the Commissioner is of the opinion that the applicant is not suitable to hold a licence because the applicant has been involved in corrupt conduct. (4) (Repealed) (4A) The Commissioner may refuse to grant an application for a licence if, within the period of 10 years before the application for the licence was made, the applicant has been removed from the NSW Police Force under section 181D of the Police Act 1990 on grounds other than the applicant's integrity as a police officer. (5) A reference in subsection (1), (2), (3), (4) or (4A) to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. 16A Restrictions on granting licence—conflict of interest for police officers (1) The Commissioner must refuse to grant an application for a licence to a police officer or other member of the NSW Police Force if the Commissioner considers that the grant of the licence, or the carrying on of the security activities authorised by the licence, would create a conflict of interest between the proper performance of the officer's or member's duties as an officer or member and the officer's or member's private interests. (2) However, the Commissioner may grant an application for a licence to a police officer or other member of the NSW Police Force subject to the condition that the person may not be employed by specified persons, if to do so would avoid a conflict of interest of the kind described in subsection (1). This subsection does not limit the other conditions to which a licence may be subject. 16B Prohibition from making application for licence (1) The Commissioner may prohibit a person from making an application for a licence if— (a) the person makes an application for a licence, and (b) in considering the application, the Commissioner— (i) is not satisfied the person is a fit and proper person to hold the class of licence sought, or (ii) considers the grant of the licence would be contrary to the public interest. (2) The Commissioner must give the person written notice of the prohibition. (3) The person is prohibited from making an application for a licence while the prohibition is in force against the person. (4) The prohibition— (a) remains in force for 2 years, and (b) commences— (i) when the person is given the notice, or (ii) if the person seeks a review of the decision to refuse the application—when the review and any related appeals are finally determined. (5) If a review or appeal overturns the decision to refuse the application, the prohibition is taken never to have been in force against the person. 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 regulatio