Security and Investigation Industry Act 1995

This Act may be cited as the Security and

Investigation Industry Act 1995.

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 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

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

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:

ascertaining the whereabouts of or repossessing goods that are subject to a security interest;

collecting or requesting the payment of debts;

executing legal process for the enforcement of a judgment or order of a court;

executing distress for the recovery of rates, taxes or money;

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;

searching for missing persons;

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:

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;

obtaining evidence for the purpose of legal proceedings in respect of such loss or injury;

assessing pecuniary compensation or damages likely to be awarded in respect of such loss or injury;

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:

protecting or guarding a person or property or keeping a person or property under surveillance;

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;

hiring out or otherwise supplying dogs or other animals for the purpose of protecting or guarding property;

preventing, detecting or investigating the commission of an offence in relation to a person or property;

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;

controlling crowds;

hiring out or otherwise supplying persons for the purpose of controlling crowds;

providing advice on security alarm or surveillance systems;

hiring out or otherwise supplying security alarm or surveillance systems or persons to provide advice on security alarm or surveillance systems;

installing or maintaining security alarm or surveillance systems;

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—

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

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

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

training of a kind prescribed by the regulations;

[Note: NoteParagraph (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). NoteDefinitions of temporary licence and

training condition had not come into operation at the date of the publication of this version.

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 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—

the person has been found guilty or convicted of an offence as prescribed by the regulations; or

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;

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—

the reputation, honesty and integrity of the person; and

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;

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—

the reputation, honesty and integrity of the person;

and

the reputation, honesty and integrity of people with whom the person associates; and

if the licence authorises or is to authorise the licensee to personally perform the function of controlling crowds—

the results of any psychological assessment of the person under this Act; and

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

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;

in deciding whether a person is a fit and proper person to hold a security industry trainers licence, regard must be had to—

the reputation, honesty and integrity of the person;

and

the reputation, honesty and integrity of people with whom the person associates; and

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.

This Act does not apply to—

a police officer;

police security officers appointed under the Police Act 1998 while performing official functions;

a sheriff, deputy sheriff, sheriff's officer, bailiff or other officer of a court or tribunal, while performing official functions;

an officer or employee of the Crown or any instrumentality of the Crown while performing official functions;

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;

any of the following:

a person who holds prescribed qualifications in loss adjusting while practising as a loss adjuster;

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;

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;

any of the following:

a person who practises as a legal practitioner; or

a person who holds prescribed qualifications in accountancy and practises as an accountant; or

a person registered as an agent under the Land Agents Act 1994; or

a company authorised by special Act of Parliament to act as a trustee; or

an ADI; or

a society registered under the Co-operatives Act 1997; or

a friendly society; or

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

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;

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;

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—

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;

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;

a person who performs only clerical or secretarial functions on behalf of an agent;

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.

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.

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 under this Act—

regulating security industry training providers; and

providing for the approval of security industry training providers;

and

relating to the approval of training, assessment or instruction provided by security industry training providers; and

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.

The Commissioner is responsible, subject to the control and directions of the Minister, for the administration of this Act.

The powers of authorised officers under sections 77 to 78C

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.

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.

If the Commissioner—

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

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.

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.

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.

In any proceedings under this Act, the Commissioner or the

Court—

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

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.

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.

A person must not—

carry on business, or otherwise act, as a security agent or investigation agent except as authorised by a licence under this Part;

or

personally provide security industry training except as authorised by a licence under this Part; or

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: Maximum penalty:

for an offence committed by a natural person—

for a first or second offence—$50 000;

or

for a third or subsequent offence—$50 000 or

12 months imprisonment or both; or

for an offence committed by a body corporate—$250 000.

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—

the person was authorised by a licence to perform the functions in the course of carrying on business as an agent; or

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.

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.

The Commissioner may, at the applicant's request, grant the licence (a temporary licence) for a limited term (not exceeding

12 months).

NoteSubsection (2) had not come into operation at the date of the publication of this version.

A security agents licence or an investigation agents licence may be subject to a condition or conditions of the following kinds:

restricted functions condition: a condition limiting the functions that may be performed under the authority of the licence;

employee condition: a condition preventing the holder of the licence from carrying on business as an agent;

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;

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;

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;

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.

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).

Conditions—

may be imposed by the Commissioner—

on the grant of the licence; or

at any time on application by the holder of the licence;

and

may be varied or revoked by the Commissioner at any time on application by the holder of the licence.

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.

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.

NoteSubsections (1)(f) and (5) had not come into operation at the date of the publication of this version.

A licence remains in force (except for any period for which it is suspended) until—

the licence is surrendered or cancelled; or

the licensed agent or licensed security industry trainer dies or, in the case of a licensed body corporate, is dissolved; or

in the case of a temporary licence—the term of the licence expires.

[Note: NoteParagraph (c) had not come into operation at the date of the publication of this version.]

A licensed agent or licensed security industry trainer must, each year not later than the date fixed by regulation—

pay to the Commissioner the fee fixed by regulation;

and

lodge with the Commissioner a return in the manner and form required by the Commissioner.

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.

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.

The Commissioner must notify the agent or trainer in writing of the cancellation of the licence of the agent or trainer.

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.