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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-02-06 Daily Xml
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SECURITY AND INVESTIGATION AGENTS (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:34): Obtained leave and introduced a bill for an act to amend the Security and Investigations Agents Act 1995. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:35): I move:

That this bill be now read a second time.

The private security industry consists of businesses and individuals providing guarding and technical security services. Guarding services include protection of property, infrastructure, events and venues, close personal protection and escort, and carriage and protection of valuable commodities. Technical security services include provision of advice regarding, hire or supply of, and the installation or maintenance of electronic security, alarm or surveillance systems.

Demand for security services has steadily increased since the mid 1980s, due to an increased perception of threats to security. Growing demand has contributed to increased competition and cost-cutting, leading to problems such as 'inadequate training, poor service delivery and a lack of consumer confidence'.

Each state and territory government is responsible for regulation of the private security industry within its jurisdiction. This has led to concerns regarding the need for nationally consistent regulation of this potentially high-risk industry, particularly in the light of varying jurisdictional licensing requirements and the effect of mutual recognition on interstate transferability of security industry licences. I seek leave to insert the remainder of the second reading explanation into Hansard without my reading it.

Leave granted.

On 3 July 2008 the Council of Australian Governments (COAG) agreed to adopt a nationally consistent approach to the regulation of the private security industry to improve the probity, competence and skills of security personnel and the mobility of security industry licences across jurisdictions. The agreed reforms include:

a list of licensable activities, including:

general guarding;

crowd or venue control;

guarding with a dog;

guarding with a firearm;

monitoring centre operations;

body guarding; and

training;

minimum criminal exclusions in determining a person's suitability to hold a security licence;

minimum standards for identification and probity checks;

agreed competency and skills requirements; and

introduction of provisional and temporary licences.

Jurisdictions have agreed that the national minimum probity standards agreed for the guarding sector are appropriate for the technical sector.

The current regime in South Australia already includes many features of the agreed reforms. For example, part of the new identification and probity regime includes mandatory fingerprinting, which was introduced in this State in late 2005. In addition, most of the agreed licensable activities are already licensed in South Australia. Implementation of the agreement will provide clarity for industry and the community about the activities performed by licensed security agents.

The Security and Investigation Agents (Miscellaneous) Amendment Bill 2013 seeks to implement the remaining elements of the nationally agreed reforms to the guarding and technical sectors of the industry.

In particular, the Bill introduces:

a requirement that a person who personally provides security industry training must hold an appropriate security industry trainers licence;

a requirement that a person must not carry on a business of providing security industry training unless the person has been approved by the Commissioner for Consumer Affairs; and

probity requirements (fingerprinting and criminal history checks) for the security training sector to the same standard as those imposed on security agents.

The quality and standard of trainers and training organisations is very important as trainers are effectively the gate keepers to the industry. Specific security industry licensing for trainers helps to prevent persons with a serious criminal history from remaining in the security industry through delivery of training and will ensure that those people who provide training satisfy the same eligibility standards as new entrants and licensees.

The existing stringent probity checks for security agents in South Australia will be strengthened. The vast majority of the agreed minimum disqualifying offences are already prescribed in the Security and Investigation Agents Regulations 2011. The COAG agreement does not require removal of any additional disqualifying offences from existing jurisdictional legislation, as the national agreement related to an agreed minimum list of offences. The additional nationally agreed disqualifying offences will be prescribed in the Regulations, thus strengthening the position in South Australia.

The opportunity has also been taken to restructure provisions of the Act to simplify its presentation. While this restructuring is largely cosmetic in nature, it involves creation of an expanded concept of fit and proper person to hold a licence or to be a director of a body corporate that holds a licence.

COAG also agreed to implement provisional licenses (subject to completion of training) and temporary licenses (for people who, for example, come from interstate and seek a licence for a short time). South Australia does not currently issue temporary licences. Mutual recognition already allows for recognition of licences and entry of licensees from other jurisdictions. While the Bill provides for these licences, it is not proposed to commence these provisions at this stage, until additional consultation and further analysis of these licences has been undertaken. This approach prioritises implementation of those reforms that would, if deferred, undermine operation of mutual recognition or delay further work towards national licensing.

The harmonised laws aim to improve public confidence in the private security industry as stringent probity checks and training requirements will in future apply across all jurisdictions. Improved labour mobility across jurisdictions due to consistent controls may also address any shortages of private security personnel during times of high demand for public protection, contributing to improved public wellbeing and safety.

I commend the Bill to members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

This clause provides that commencement will be on a date set by proclamation and that section 7(5) of the Acts Interpretation Act 1915 does not apply (whereby an Act comes into operation 2 years after it is assented to, unless brought into operation before then).

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Security and Investigation Agents Act 1995

4—Amendment of long title

5—Amendment of section 1—Short title

The long title and short title are amended to accommodate the fact that certain trainers in the security industry are proposed to be regulated under the Act.

6—Amendment of section 3—Interpretation

The definition of controlling crowds is added to make it clear that a person commonly known as a bouncer will be taken to be performing the function of controlling crowds.

As dogs or other animals are not used to guard persons (only property), the reference to 'a person' is deleted from paragraph (b) of the definition of security agent.

The replacement of the definitions of investigation agents licence and security agents licence does not effect substantive change. It is consequential on the reworking of section 7.

New definitions relevant to the regulation of trainers in the security industry are included. The definition of security industry training sets the scope of the regulation.

The provisions of the Act relating to tests for eligibility to hold a licence or be approved under the Act are restructured. The restructuring involves creation of an expanded concept of a fit and proper person to hold a licence or to be a director of a body corporate that holds a licence as set out in new subsection (2). The new concept covers matters relating to previous offences and disqualifications currently dealt with separately in section 9(1)(b) and (c) and (2)(b)(i) and (ii). As is currently the case, relevant offences are to be spelt out in the regulations but, unlike the current position, the regulations may provide that being found guilty of an offence without conviction may result in the person being ineligible for a licence. The new concept also covers the matters currently set out in section 9A relating to reputation, honesty and integrity and the public interest for security agents and the matters currently set out in section 11AD in relation to psychological assessment of crowd controllers.

7—Insertion of section 4A

This amendment inserts a new clause that declares that certain provisions of the Act are excluded from the operation of section 9 of the National Vocational Education and Training Regulator Act 2011 of the Commonwealth. This will ensure that the new requirements being included in this measure in relation to the approval of security industry training providers (see inserted section 23AAA) will continue to apply to certain organisations providing training, assessment or instruction in relation to the performance of the functions of security agents, in addition to the requirements of the Commonwealth Act.

8—Amendment of section 5A—Enforcement

This amendment corrects the references to the relevant provisions of the Fair Trading Act 1987 following the amendment of that Act.

9—Amendment of section 5B—Criminal intelligence

The current provision relating to criminal intelligence leading to the refusal of an application for, imposition of a condition on, or suspension of, a security agents licence is extended to cover a security industry trainers licence and approval as a security industry training provider.

10—Amendment of section 6—Obligation to be licensed

Section 6 is amended to make it an offence to personally provide security industry training except as authorised by a licence.

11—Substitution of section 7

Part 2 is restructured to accommodate the regulation of security industry training and to simplify its presentation. The concept of a restricted licence is removed since that concept was largely related to transitional arrangements when the Act was enacted and now involves an unnecessary layer of complexity. The examples of licence conditions are also removed for similar reasons.

2 substantive changes are made in sections 7 to 7D:

A new concept of a temporary licence is included. This is a licence for a term of less than 12 months. Such a licence is not subject to an annual fee. This is dealt with in new section 7.

A condition requiring training to be undertaken within a specified period following the grant of a licence is expressly contemplated, as is cancellation of the licence if the training is not satisfactorily completed. This is dealt with in new section 7A.

It is contemplated that these new components will be introduced with a delayed commencement.

7—Grant of licence

This section separates out the power of the Commissioner to grant a security agents licence, investigation agents licence or security industry trainers licence on application as an introductory statement.

7A—Licence conditions

This section deals with the imposition of licence conditions. It includes the contents of current sections 7 and 10. It is made clear that adding or removing authorised functions is to be dealt with through a variation or revocation of the restricted functions condition.

7B—Duration of licence

This section includes the contents of current section 12(1).

7C—Annual fee and return for ongoing licence

This section includes the contents of current section 12(2) to (5).

7D—Surrender of licence

This section includes the contents of current section 12(6).

12—Amendment of section 8—Application for licence

The requirement for an applicant to provide evidence of identity, age and address is extended to each director of a body corporate that is an applicant.

The requirements for the provision of fingerprints that is currently set out in section 8B and for psychological assessment currently set out in section 8C are incorporated into this provision.

The provision is extended to apply to a security industry trainers licence.

13—Amendment of section 8A—Applications for security agents licence or security industry trainers licence to be furnished to Commissioner of Police

The provision is extended to apply to an application for a security industry trainers licence. The content of current section 8B(5) is incorporated into the provision.

Subsection (1a) is new and allows the Commissioner to rely on a recent interstate police check of a person in appropriate cases.

14—Repeal of sections 8B and 8C

These sections have been incorporated into sections 8 and 8A.

15—Amendment of section 9—Determination of application for licence

Section 9 is restructured. It is expressed in terms of an applicant satisfying the Commissioner as to certain matters in order for the applicant to be eligible to be granted a licence. The fit and proper person test is streamlined—see the explanation in clause 6.

New subsection (2a) provides that the Commissioner may grant a licence to a person who does not have the necessary qualifications and experience, subject to conditions that require the applicant to be supervised and to undertake certain training and to not carry on a business as an agent but to only work as an employee. This is to enable the person to gain the necessary qualifications and experience.

New subsection (5) replicates current section 9A(2) and new subsection (6) replicates current section 9A(3). In both cases, the provisions are extended to apply to a security industry trainers licence.

New subsection (7) provides that 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.

16—Repeal of sections 9A and 10

Section 9A is incorporated into sections 3(2) and 9. Section 10 is incorporated into section 7A.

17—Amendment of section 11—Appeals

The right of the Commissioner of Police to appeal against the grant of a licence is extended to a security industry trainers licence. The remainder of the provision will also apply to such a licence.

A right of appeal is extended to the holder of a licence against a decision of the Commissioner refusing to vary or revoke a condition of the licence.

18—Amendment of section 11A—Power of Commissioner to require photograph and information

The application of the provision is extended to a security industry trainer.

The requirement to provide evidence of identity, age and address is extended to directors of bodies corporate (as in section 8).

Subsections (3) to (5) cover default which is currently dealt with in section 12(3).

19—Repeal of sections 11AB to 12

The content of section 12 is relocated as set out above, principally to sections 7B, 7C and 7D.

Section 11AB is relocated to section 23R (and extended to apply in relation to security industry trainers and providers) and sections 11AC and 11AD to section 23S. The provisions cover matters relevant to the ongoing regulation of agents and trainers.

Section 11B is a new provision designed primarily to assist in the transition to nationally consistent categories of security agents. It contemplates the making of regulations that explain the various descriptions and codes used on a licence to represent particular conditions and provide for the transition into the nationally consistent descriptions. The section allows the Commissioner to require a licence to be presented for updating of the descriptions.

20—Amendment of section 23—Entitlement to be process server

As with agents, section 23 is modified so that the regulations may provide that a finding of guilt without conviction may be prescribed by the regulations as a disqualifying factor for a process server.

21—Insertion of sections 23AAA and 23AA

2 new offences are created:

carrying on a business of providing security industry training unless the person has been approved by the Commissioner as a security industry training provider;

employing or engaging another as a security industry trainer to 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.

To be approved as a security industry training provider the person must be a fit and proper person to hold a security industry trainers licence and approval may be withdrawn by the Commissioner by notice in writing. Evidence of identity, age and address and fingerprinting may be required of applicants for or holders of approvals or of directors if the applicant or holder is a body corporate.

22—Substitution of heading to Part 3A

The heading is amended to accommodate the application of the Part to security industry trainers.

23—Substitution of heading to Part 3A Division 1

The heading currently incorrectly refers to disqualification and the amendment corrects this error.

24—Amendment of section 23A—Circumstances in which Commissioner may suspend security agents licence or security industry trainers licence

Section 23A is extended in application to a security industry trainers licence.

25—Amendment of section 23B—Circumstances in which Commissioner must suspend security agents licence

This is a technical amendment—the regulations simply prescribe offences relevant to a crowd controller.

26—Amendment of section 23C

This updates the penalty to make it consistent with the similar offence in section 36.

27—Amendment of section 23E—Appeal

The right to appeal against suspension is extended to the holder of a security industry trainers licence.

28—Amendment of section 23G—Cancellation of licence

Section 23G is extended in application to a security industry trainers licence. A technical amendment is made to match the prescription of offences by the regulations. It also updates the penalty to make it consistent with the similar offence in section 36.

29—Substitution of heading to Part 3A Division 2

This amendment is for consistency of terminology.

30—Amendment of section 23J—Security agent authorised to control crowds may be required to undertake drug testing

This amendment explicitly contemplates an agreement with a licensee about a different time or place for a drug test and ensures that the provision applies in such a case.

31—Insertion of Part 3A Divisions 3 and 4

Currently, armed guarding of property requires both a security agents licence and a firearms licence. The security agents licence is not expressly connected to the firearms licence and independently authorises the function of guarding property. If a firearms licence is suspended or cancelled (whether voluntarily because it is no longer required by the agent or as a consequence of a breach), the person could continue in a security agent's role without modification of the security agents licence. Under the COAG agreement, South Australia is required to introduce a category of security agents licence for guarding with a firearm. This will require the establishment of a restricted functions condition expressly referring to a firearm. Without amendment of the Act, in a case where the firearms licence ceases to be in force, the restricted functions condition could not be removed other than through disciplinary provisions or on application of the agent. Section 23R is inserted so that the security agents function is automatically limited if the related firearms licence is cancelled or suspended. The licence is required to be returned to the Commissioner so that any endorsement that indicates that the agent is allowed to carry a firearm may be removed.

Section 23S replicates section 11AB and extends its application to security industry trainers and providers. Section 23T replicates sections 11AC and 11AD. The requirement to participate in an approved psychological assessment is brought into line with that in section 8 in relation to an application for a licence.

32—Amendment of section 24—Interpretation of Part 4

This amendment is consequential on the extension of the disciplinary provisions to security industry trainers and ensures that former trainers may be subject to discipline.

33—Amendment of section 25—Cause for disciplinary action

In addition to amendments consequential on the extension of the disciplinary provisions to security industry trainers and the inclusion of references to fit and proper, 3 additional grounds for discipline are added, namely, acting contrary to an undertaking accepted under the Australian Consumer Law, circumstances coming to light indicating non-eligibility for a licence, and failing to properly supervise an agent subject to a supervision condition.

34—Amendment of section 27A—Procedure in the case of complaint against security agent or security industry trainer

35—Amendment of section 29—Disciplinary action

36—Amendment of section 30—Contravention of orders

37—Amendment of section 31—Delegations

38—Amendment of section 32—Agreement with professional organisation

These sections are extended in application to a security industry trainer.

39—Amendment of section 34—Register of licensed agents, security industry trainers and security industry training providers

The register is to be extended to cover security industry trainers and security industry training providers and to record undertakings accepted under the Australian Consumer Law.

40—Amendment of section 36AA—Taking of fingerprints

This amendment supports a more flexible approach to requiring persons to make arrangements for fingerprinting.

41—Amendment of section 36A—Destruction of fingerprints

These amendments are consequential on the changes to the taking of fingerprints and extend the application of the provision to security industry trainers and security industry training providers. They also require the destruction of fingerprints in circumstances where the person ceases to be a director of a body corporate.

42—Amendment of section 36B—Immunity

The immunity provided by the section is extended to cover the suspension or cancellation of a security industry trainers licence.

43—Amendment of section 38—Statutory declaration

This amendment is of a statute law revision nature.

44—Amendment of section 42—Offences by bodies corporate

This amendment extends the definition of prescribed offence to cover offences that operate in relation to security industry training providers.

45—Amendment of section 43—Continuing offence

This amendment is of a statute law revision nature.

46—Amendment of section 46—Service of documents

The section is extended to operate in relation to licensed security industry trainers and to provide for notification or service by email.

47—Amendment of section 48—Regulations

The regulation making power is modified to enable regulations to be made requiring security industry trainers to comply with a code of conduct.

48—Repeal of Schedule 2

This is an amendment of a statute law revision nature.

Debate adjourned on motion of Ms Chapman.

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