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House of Assembly—No 73
As laid on the table and read a first time, 9 December 2004
South Australia
Statutes
Amendment (Liquor, Gambling and Security Industries) Bill 2004
A Bill For
An
Act to amend the Gaming Machines Act 1992, the Liquor Licensing
Act 1997 and the Security and Investigation Agents Act 1995.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Gaming
Machines Act 1992
4 Amendment of section 3—Interpretation
5 Amendment of section 7—Conduct of
proceedings
6 Insertion of Part 2 Division 4
Division 4—Criminal
intelligence
12 Criminal intelligence
7 Amendment of section 19—Certain
criteria must be satisfied by all applicants
8 Insertion of section 20
20 Applications to be given to
Commissioner of Police
9 Amendment of section 24—Discretion
to grant or refuse application
10 Amendment of section 28—Certain gaming
machine licences only are transferable
11 Insertion of sections 28AA and 28AAB
28AA Applications to be given to Commissioner
of Police
28AAB Discretion to grant or refuse application
under section 28
12 Amendment of section 30—Objections
13 Amendment of section 31—Intervention
by Commissioner of Police
14 Amendment of section 36—Cause for
disciplinary action against licensees
15 Insertion of section 41A
41A Applications to be given to
Commissioner of Police
16 Amendment of section 42—Discretion to
grant or refuse approval
17 Amendment of section 43—Intervention
by Commissioner of Police
18 Amendment of section 44—Revocation of
approval
19 Amendment of section 58—Powers in
relation to minors in gaming areas
20 Amendment of section 60—Power to
remove persons who have been barred
21 Amendment of section 67—Power to
remove offenders
22 Insertion of section 70A
70A Procedure in relation to criminal
intelligence
23 Insertion of section 85A
85A Destruction of fingerprints
Part 3—Amendment of Liquor
Licensing Act 1997
24 Amendment of section 4—Interpretation
25 Amendment of section 17—Division of
responsibilities between the Commissioner and the Court
26 Insertion of Part 2 Division 6
Division 6—Criminal
intelligence
28A Criminal intelligence
27 Insertion of section 51A
51A Applications to be given to
Commissioner of Police
28 Amendment of section 53—Discretionary
powers of licensing authority
29 Amendment of section 55—Factors to be
taken into account in deciding whether a person is fit and proper
30 Insertion of Part 4 Division 10A
Division 10A—Approval of crowd
controllers
71A Approval of crowd controllers
71B Use of force by approved crowd
controller
71C Revocation of approval
71D Application of Division
31 Insertion of section 75A
75A Intervention by Commissioner of
Police
32 Amendment of section 76—Other rights
of intervention
33 Amendment of section 77—General right
of objection
34 Amendment of section 116—Power to
require minors to leave licensed premises
35 Amendment of section 118—Application
of Part
36 Amendment of section 119—Cause for
disciplinary action
37 Amendment of section 120—Disciplinary
action before the Court
38 Amendment of section 124—Power to
refuse entry or remove persons guilty of offensive behaviour
39 Amendment of section 127—Power to
remove person who is barred
40 Insertion of section 131A
131A Failing to leave licensed premises on
request
41 Insertion of section 137A
137A Destruction of fingerprints
Part 4—Amendment of Security
and Investigation Agents Act 1995
42 Amendment of section 3—Interpretation
43 Insertion of sections 5A and 5B
5A Enforcement
5B Criminal intelligence
44 Insertion of sections 8A to 8C
8A Applications for security agents
licence to be furnished to Commissioner of Police
8B Applicant for security agents
licence may be required to provide fingerprints
8C Applicant for security agents
licence may be required to undergo psychological assessment
45 Amendment of section 9—Entitlement to
be licensed
46 Insertion of section 9A
9A Factors to be taken into account in
deciding whether to grant application for security agents licence
47 Amendment of section 11—Appeals
48 Insertion of sections 11AB to 11AD
11AB Power of Commissioner to require
security agent to provide fingerprints
11AC Power of Commissioner to require
security agents authorised to control crowds to undertake training
11AD Power of Commissioner to require
security agents authorised to control crowds to take part in psychological
assessment
49 Amendment of section 12—Duration of
licence and annual fee and return etc
50 Amendment of section 12A—Employment of
security agents or investigation agents
51 Insertion of Part 3A
Part 3A—Regulation of security agents
Division 1—Suspension,
cancellation and disqualification
23A Circumstances in which Commissioner
may suspend security agents licence
23B Circumstances in which Commissioner
must suspend security agents licence
23C Content of suspension notice
23D Service of suspension notice
23E Appeal
23F Immunity
23G Cancellation of licence
23H Review of licence
Division 2—Alcohol and drug
testing of persons authorised to control crowds
23I Definitions for this Division
23J Security agents authorised to
control crowds may be required to undertake drug testing
23K Security agents 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
52 Amendment of section 25—Cause for
disciplinary action
53 Amendment of section 26—Complaints
54 Insertion of section 27A
27A Procedure in the case of complaint
against security agent
55 Insertion of section 36A
36A Destruction of fingerprints
56 Amendment of section 39—Commissioner
of Police to conduct investigations and make available relevant information
57 Amendment of section 44—Prosecutions
Schedule 1—Transitional provisions
3 Security and Investigation Agents
Act 1995
Schedule 2—Statute law revision amendment of Gaming Machines
Act 1992
Schedule 3—Statute law
revision amendment of Security and Investigation Agents Act 1995
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Statutes Amendment (Liquor,
Gambling and Security Industries) Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Gaming Machines Act 1992
4—Amendment of section 3—Interpretation
(1) Section 3(1)—after the definition of approved
insert:
approved crowd controller means a person approved under Part 4
Division 10A of the Liquor Licensing Act 1997 to act as a crowd
controller for licensed premises, but does not include a person whose approval
has been revoked or suspended;
(2) Section 3(1)—after the definition of approved
gaming machine insert:
approved gaming machine employee in relation to the gaming operations
conducted on licensed premises means a person who is approved under Part 4 as a
gaming machine employee in respect of those operations;
(3) Section 3(1), definition of authorised
person—delete the definition and substitute:
authorised person, in relation to premises to which a
gaming machine licence relates, means—
(a) the
licensee; or
(b) a
responsible person for the licensed premises; or
(c) an
approved gaming machine manager or approved gaming machine employee for the
licensed premises; or
(d) an
inspector; or
(e) a
police officer; or
(f) an
approved crowd controller;
(4) Section 3(1)—after the definition of the
Court insert:
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, or to enable the
discovery of the existence or identity of a confidential source of information
relevant to law enforcement;
(5) Section 3(1)—after the definition of prescribed
gaming machine component insert:
responsible person for licensed premises means a person who is, in accordance
with section 97 of the Liquor Licensing Act 1997, responsible for
supervising and managing the business conducted under the liquor licence in
respect of the licensed premises;
5—Amendment of section 7—Conduct of proceedings
(1) Section 7(2)—delete "subsection
(3)" and substitute:
section 12
(2) Section
7(3)—delete subsection (3)
6—Insertion of Part 2 Division 4
Part 2—after Division 3 insert:
Division 4—Criminal
intelligence
12—Criminal
intelligence
(1) No
information provided by the Commissioner of Police to the Authority or 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 licence, consent or approval, or takes or proposes to take
disciplinary action against a licensee, or revokes or proposes to revoke an approval;
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
licensee were to continue to be licensed, or that it would be contrary to the
public interest if the approval were to continue in force.
(3) In any proceedings under this Act, the
Commissioner—
(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.
(4) If the Commissioner of Police lodges an
objection to an application under this Act because of information that is
classified by the Commissioner of Police as criminal intelligence—
(a) the
Commissioner of Police is not required to serve a copy of the notice of
objection on the applicant; and
(b) the
Commissioner must, at least 7 days before the day appointed for the hearing of
the application, 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.
(5) 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.
7—Amendment of section 19—Certain criteria must be satisfied by all applicants
(1) Section 19(2)(b)—delete paragraph (b) and
substitute:
(b) the
reputation, honesty and integrity (including the creditworthiness) of the
person are matters to which consideration must be given; and
(2) Section 19(2)(c)—before "honesty"
insert:
reputation,
After section 19 insert:
20—Applications
to be given to Commissioner of Police
(1) The
Commissioner must give the Commissioner of Police a copy of each application
for a licence.
(2) As soon as reasonably practicable following
receipt of an application under subsection (1), the Commissioner of Police—
(a) must
make available to the Commissioner information about criminal convictions; and
(b) may
make available to the Commissioner other information to which the Commissioner
of Police has access,
relevant to whether the application should be granted.
9—Amendment of section 24—Discretion to grant or refuse application
Section 24—after subsection (2) insert:
(3) An
application for a licence can only be granted if the Commissioner is satisfied
that to grant the application would not be contrary to the public interest.
10—Amendment of section 28—Certain gaming machine licences only are transferable
Section 28(4)—delete subsection (4) and
substitute:
(4) For the purpose of determining whether a
person is a fit and proper person to hold a licence or to occupy a position of
authority in a trust or corporate entity that holds a licence—
(a) the
Commissioner may cause the person's photograph and fingerprints to be taken;
and
(b) the
reputation, honesty and integrity (including the creditworthiness) of the
person are matters to which consideration must be given; and
(c) the
reputation, honesty and integrity of the person's known associates (including
persons who are relatives) must also be considered.
11—Insertion of sections 28AA and 28AAB
After section 28 insert:
28AA—Applications
to be given to Commissioner of Police
(1) The
Commissioner must give the Commissioner of Police a copy of each application
for consent under section 28.
(2) As soon as reasonably practicable following
receipt of an application under subsection (1), the Commissioner of Police—
(a) must
make available to the Commissioner information about criminal convictions; and
(b) may
make available to the Commissioner other information to which the Commissioner
of Police has access,
relevant to whether the application should be granted.
28AAB—Discretion
to grant or refuse application under section 28
(1) Subject
to this Act, the Commissioner has an unqualified discretion to grant or refuse
an application for consent under section 28 on any ground, or for any reason,
that the Commissioner thinks fit.
(2) The
Commissioner should not grant an application for consent under section 28 as a
matter of course without a proper inquiry into its merits (whether or not the
Commissioner of Police has intervened in the proceedings or there are any
objections to the application).
(3) An
application for consent under section 28 can only be granted if the
Commissioner is satisfied that to grant the application would not be contrary
to the public interest.
12—Amendment of section 30—Objections
Section 30(2)—delete "A copy"
and substitute:
Subject to section 12, a copy
13—Amendment of section 31—Intervention by Commissioner of Police
Section 31(1)—delete subsection (1) and substitute:
(1) The Commissioner of Police may intervene in
any proceedings before the Commissioner on an application under this Part for
the purpose of introducing evidence or making submissions and, in particular,
may intervene on the question of—
(a) whether
a person is a fit and proper person; or
(b) whether,
if the application were to be granted, public disorder or disturbance would be
likely to result; or
(c) whether
to grant the application would be contrary to the public interest.
14—Amendment of section 36—Cause for disciplinary action against licensees
(1) Section 36(1)—after paragraph (k) insert:
(l) it
would be contrary to the public interest if the licensee were to continue to be
licensed.
(2) Section 36—after subsection (1) insert:
(2) In
determining whether there is proper cause for disciplinary action against a
licensee under subsection (1), regard may be had to such evidence of the
conduct (no matter when the conduct is alleged to have occurred) of the
licensee or persons with whom the licensee associates (or has associated at any
relevant time) as the Commissioner considers relevant, including information
that existed at the time the licence was granted, regardless of whether that information
was known or could have been made known to the Commissioner at that time.
After section 41 insert:
41A—Applications
to be given to Commissioner of Police
(1) The
Commissioner must give the Commissioner of Police a copy of each application
for approval made under this Part other than under section 40 or 41.
(2) As soon as reasonably practicable following
receipt of an application under subsection (1), the Commissioner of Police—
(a) must
make available to the Commissioner information about criminal convictions; and
(b) may
make available to the Commissioner other information to which the Commissioner
of Police has access,
relevant to whether the application should be granted.
16—Amendment of section 42—Discretion to grant or refuse approval
(1) Section 42—after subsection (1) insert:
(1a) An
application for approval can only be granted if the Commissioner is satisfied
that to grant the application would not be contrary to the public interest.
(2) Section 42(6)(a)—delete paragraph (a) and
substitute:
(a) the
reputation, honesty and integrity (including the creditworthiness) of the
person; and
(3) Section 42(6)(b)—before "honesty"
insert:
reputation,
17—Amendment of section 43—Intervention by Commissioner of Police
Section 43(1)—delete subsection (1) and
substitute:
(1) The
Commissioner of Police may intervene in proceedings before the Commissioner on
an application for approval under this Part other than under section 40 or 41
for the purpose of introducing evidence or making submissions and, in
particular, may intervene on the question of whether the person to whom the
application relates is a fit and proper person or whether to grant the
application would be contrary to the public interest.
18—Amendment of section 44—Revocation of approval
Section 44(2)(a)—after
"including" insert:
, subject to section 12,
19—Amendment of section 58—Powers in relation to minors in gaming areas
Section 58—after subsection (4) insert:
(5) An
authorised person must comply with any procedures prescribed under section
116(3a) of the Liquor Licensing Act 1997 in relation to the removal
by authorised persons (within the meaning of that Act) of minors from licensed
premises.
20—Amendment of section 60—Power to remove persons who have been barred
Section 60—after subsection (2) insert:
(3) An
authorised person must comply with any procedures prescribed under the Liquor
Licensing Act 1997 in relation to the removal by authorised persons
(within the meaning of that Act) of persons from licensed premises.
21—Amendment of section 67—Power to remove offenders
(1) Section 67(1)—delete "The holder of a
gaming machine licence or an approved gaming machine manager for the licensed
premises, if satisfied that a person who is in a gaming area on the
premises" and substitute:
An authorised person, if satisfied that a person who is in a
gaming area on licensed premises
(2) Section 67(3)—delete "The holder of a
gaming machine licence or an approved gaming machine manager for the licensed
premises" and substitute:
An authorised person
(3) Section 67(3)—delete "the
premises" and substitute:
licensed premises
(4) Section 67—after subsection (4) insert:
(4a) The
regulations may prescribe procedures to be observed by authorised persons in or
in connection with the prevention of persons from entering gaming areas.
(4b) An authorised person must comply with any
procedures—
(a) prescribed
under subsection (4a); or
(b) prescribed
under the Liquor Licensing Act 1997 in relation to the removal by
authorised persons (within the meaning of that Act) of persons from licensed
premises.
Part 6—after section 70 insert:
70A—Procedure
in relation to criminal intelligence
In any proceedings under this Part, the
Court or the Authority—
(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.
After section 85 insert:
85A—Destruction
of fingerprints
(1) This section applies—
(a) to
fingerprints taken under section 19, 28 or 42 in connection with an application
for a licence, consent or approval if the application is refused; or
(b) to
fingerprints taken under section 19, 28 or 42 in connection with an application
for a licence, consent or approval if the application is granted and—
(i) in
the case of a licence—the licence is revoked or surrendered, or the holder,
being a body corporate, dissolved; or
(ii) in
the case of an approval—the approval is revoked.
(2) A
person whose fingerprints have been taken for the purposes of this Act may, if
the fingerprints are fingerprints to which this section applies, apply to the
Commissioner of Police to have the fingerprints, and any copies of the
fingerprints, destroyed.
(3) The
Commissioner of Police may grant or refuse the application as the Commissioner
of Police sees fit.
Part 3—Amendment of Liquor Licensing Act 1997
24—Amendment of section 4—Interpretation
(1) Section 4—after the definition of adjacent
insert:
approved crowd controller means a person approved under Part 4
Division 10A to act as a crowd controller for licensed premises, but does not
include a person whose approval has been suspended or revoked;
(2) Section 4—after the definition of Court
insert:
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, or to enable the
discovery of the existence or identity of a confidential source of information
relevant to law enforcement;
25—Amendment of section 17—Division of responsibilities between the Commissioner and the Court
(1) Section 17(b)—after "the Commissioner
must" insert:
, subject to subsection (2),
(2) Section 17—after its present contents as
amended by this section (now to be designated as subsection (1)) insert:
(2) The
Commissioner is not required to attempt conciliation in relation to an
application to which an objection has been lodged by the Commissioner of Police
on the ground that to grant the application would be contrary to the public
interest.
26—Insertion of Part 2 Division 6
Part 2—after Division 5 insert:
Division 6—Criminal
intelligence
28A—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 a licensing authority—
(a) refuses
an application for a licence, the transfer of a licence or an approval, or
takes disciplinary action against a person, or revokes or proposes to revoke an
approval under Part 4 Division 10A; and
(b) the
decision to do so is made because of information that is classified by the
Commissioner of Police as criminal intelligence,
the licensing authority 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 person were to be or continue to be licensed or approved, or
that it would be contrary to the public interest if the approval were to
continue in force.
(3) If the Commissioner of Police lodges an
objection to an application under Part 4 because of information that is
classified by the Commissioner of Police as criminal intelligence—
(a) the
Commissioner of Police is not required to serve a copy of the notice of
objection on the applicant; and
(b) the
licensing authority must, at least 7 days before the day appointed for the
hearing of the application, 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 8
in respect of a person 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 were to be or continue
to be licensed or approved.
(5) In any proceedings under this Act, the
Commissioner, the Court or the Supreme 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 if this Act except to a Deputy
Commissioner or Assistant Commissioner of Police.
After section 51 insert:
51A—Applications
to be given to Commissioner of Police
(1) This section applies to an application for—
(a) the
grant of a licence; or
(b) the
transfer of a licence; or
(c) approval
of a person or persons as a responsible person or responsible persons for a
business under a licence; or
(d) approval
of a person to assume a position of authority in a trust or corporate entity
that holds a licence; or
(e) permission
to carry on business as the licensee under a licence in respect of licensed
premises that the licensee has ceased to occupy; or
(f) approval
of an agreement or arrangement under which an unlicensed person may participate
in the proceeds of the business carried on under a licence.
(2) The
Commissioner must give the Commissioner of Police a copy of each application to
which this section applies.
(3) As soon as reasonably practicable following
receipt of an application under subsection (2), the Commissioner of Police—
(a) must
make available to the Commissioner information about criminal convictions; and
(b) may
make available to the Commissioner other information to which the Commissioner
of Police has access,
relevant to whether the application should be granted.
28—Amendment of section 53—Discretionary powers of licensing authority
Section 53—after subsection (1) insert:
(1a) An
application must be refused if the licensing authority is satisfied that to
grant the application would be contrary to the public interest.
(1) Section 55(1)—delete subsection (1) and
substitute:
(1) In deciding whether a person is a fit and
proper person for a particular purpose under this Act, a licensing authority
must take into consideration—
(a) the
reputation, honesty and integrity (including the creditworthiness) of the
person; and
(b) the
reputation, honesty and integrity of people with whom the person associates.
(2) Section 55—after subsection (2) insert:
(3) For
the purposes of determining whether a person is a fit and proper person for a
particular purpose under this Act, the Commissioner may cause the person's
photograph and fingerprints to be taken.
30—Insertion of Part 4 Division 10A
Part 4—after Division 10 insert:
Division 10A—Approval
of crowd controllers
71A—Approval
of crowd controllers
(1) The
Commissioner may, on application, approve a person to act as a crowd controller
for licensed premises.
(2) The
Commissioner cannot approve a person to act as a crowd controller unless the
person has the appropriate knowledge, experience and skills for the purpose.
(3) If
an applicant for approval does not have the appropriate knowledge, experience
and skills to act as a crowd controller, the Commissioner may nevertheless
approve the person and impose a condition on the approval that the person
undertake specified accredited training within a specified time of obtaining
the approval.
71B—Use of
force by approved crowd controller
An approved crowd controller must not use force to remove a person
from licensed premises except under the direct supervision of the licensee or
the responsible person for the premises.
71C—Revocation
of approval
(1) The
Commissioner has an unqualified discretion to revoke an approval given under
this Division on such ground or for such reason as he or she thinks fit.
(2) The Commissioner must, before exercising
powers under subsection (1) in relation to a person—
(a) give
written notice to the person of the proposed revocation, including, subject to
section 28A, a statement of the reasons that the Commissioner considers justify
the revocation; and
(b) allow
the person a period of 21 days (or such longer period as the Commissioner may
in a particular case allow) to show cause why the approval should not be
revoked.
(3) The
Commissioner may suspend an approval pending final determination of the
question as to whether the approval should be revoked.
(4) On
revoking an approval, the Commissioner must cause notice of the revocation to
be given, personally or by post, to all persons affected by the revocation.
71D—Application
of Division
This Division is in addition to, and does not derogate from, the Security
and Investigation Agents Act 1995.
Part 4 Division 13—before section 76
insert:
75A—Intervention
by Commissioner of Police
The Commissioner of Police may intervene in
proceedings before a licensing authority for the purpose of introducing
evidence, or making submissions, on any question before the authority and, in
particular, may, if the proceedings are in connection with an application under
this Part, intervene on the question of—
(a) whether
a person is a fit and proper person; or
(b) whether,
if the application were to be granted, public disorder or disturbance would be
likely to result; or
(c) whether
to grant the application would be contrary to the public interest.
32—Amendment of section 76—Other rights of intervention
Section 76(1)—delete subsection (1)
33—Amendment of section 77—General right of objection
Section 77(2)—delete "A copy"
and substitute:
Subject to section 28A, a copy
34—Amendment of section 116—Power to require minors to leave licensed premises
(1) Section 116—after subsection (3) insert:
(3a) The
regulations may prescribe procedures to be observed by authorised persons in or
in connection with the removal of minors from licensed premises.
(3b) An
authorised person must comply with any procedures prescribed under
subsection (3a).
(2) Section
116(4), definition of authorised person, (a)—delete "or an
agent or employee of the licensee"
(3) Section 116(4), definition of authorised
person—after paragraph (c) insert:
(d) an
approved crowd controller;
35—Amendment of section 118—Application of Part
Section 118—after its present contents
(now to be designated as subsection (1)) insert:
(2) This
Part does not apply to a person approved as a crowd controller under Part 4
Division 10A.
36—Amendment of section 119—Cause for disciplinary action
(1) Section 119(1)(b)—after subparagraph (vi)
insert:
(via) if
there has been a breach of a provision of this Act or the Gaming Machines
Act 1992 relating to the prevention of a person from entering, or the
removal of a person from, licensed premises; or
(2) Section 119(1)—after paragraph (d) insert:
(e) if
the person is or has been licensed or approved under this Act but it would be
contrary to the public interest if the person were to be or continue to be
licensed or approved.
(3) Section 119—after subsection (1) insert:
(2) In
determining whether there is proper cause for disciplinary action against a
person who is or has been licensed or approved under this Act, regard may be
had to such evidence of the conduct (no matter when the conduct is alleged to
have occurred) of the person or persons with whom the person associates (or has
associated at any relevant time) as the Court considers relevant, including
information that existed at the time the licence or approval was granted,
regardless of whether that information was before or could have been brought
before the licensing authority at that time.
37—Amendment of section 120—Disciplinary action before the Court
(1) Section
120(1)—delete ", on grounds stated in the complaint,"
(2) Section 120—after subsection (1) insert:
(1a) The
complaint must, subject to section 28A, state the grounds for disciplinary
action.
38—Amendment of section 124—Power to refuse entry or remove persons guilty of offensive behaviour
(1) Section 124—after subsection (1) insert:
(1a) The
regulations may prescribe procedures to be observed by authorised persons in or
in connection with the prevention of persons from entering, and the removal of
persons from, licensed premises.
(1b) An
authorised person must comply with any procedures prescribed under
subsection (1a).
(2) Section
124(6), definition of authorised person, (a)—delete "or an
agent or employee of the licensee"
(3) Section 124(6), definition of authorised
person—after paragraph (c) insert:
(d) an
approved crowd controller.
39—Amendment of section 127—Power to remove person who is barred
(1) Section 127—after subsection (2) insert:
(2a) The
regulations may prescribe procedures to be observed by authorised persons in or
in connection with the prevention of persons from entering, and the removal of
persons from, licensed premises.
(2b) An
authorised person must comply with any procedures prescribed under
subsection (2a).
(2) Section
127(3), definition of authorised person, (a)—delete "or an
agent or employee of the licensee"
(3) Section 127(3), definition of authorised
person—after paragraph (c) insert:
(d) an
approved crowd controller.
Part 11 Division 1—before section 132
insert:
131A—Failing
to leave licensed premises on request
(1) A person on licensed premises who—
(a) —
(i) is
under the age of 18 years and on the licensed premises for the purpose of
consuming liquor in contravention of this Act; or
(ii) is
intoxicated or behaving in an offensive or disorderly manner; or
(iii) is
barred from the licensed premises under Part 9 Division 3; or
(iv) is
otherwise on the premises in contravention of this Act; and
(b) fails,
without reasonable excuse, to leave the licensed premises immediately on being
requested to do so by an authorised person,
is guilty of an offence.
Maximum penalty: $1 250.
(2) In this section—
authorised person means—
(a) the
licensee; or
(b) a
responsible person for the licensed premises; or
(c) an
inspector or a police officer; or
(d) an
approved crowd controller.
After section 137 insert:
137A—Destruction
of fingerprints
(1) This section applies—
(a) to
fingerprints taken under section 55 in connection with an application for a
licence or approval if the application is refused; or
(b) to
fingerprints taken under section 55 in connection with an application for a
licence or approval if the application is granted and—
(i) in
the case of a licence—the licence expires or is revoked or surrendered, or the
holder, being a body corporate, dissolved; or
(ii) in
the case of an approval—the approval is revoked.
(2) A
person whose fingerprints have been taken for the purposes of this Act may, if
the fingerprints are fingerprints to which this section applies, apply to the
Commissioner of Police to have the fingerprints, and any copies of the
fingerprints, destroyed.
(3) The
Commissioner of Police may grant or refuse the application as the Commissioner
of Police sees fit.
Part 4—Amendment of Security and Investigation Agents
Act 1995
42—Amendment of section 3—Interpretation
(1) Section 3—after the definition of agent
insert:
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;
(2) Section 3—after the definition of Court
insert:
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, or to enable the
discovery of the existence or identity of a confidential source of information
relevant to law enforcement;
(3) Section 3—after the definition of director
insert:
holder of a security agents licence includes the holder of a security agents
licence that has been suspended;
(4) Section 3—after the definition of security
agent insert:
security agents licence includes a restricted security agents
licence;
43—Insertion of sections 5A and 5B
Part 1—after section 5 insert:
5A—Enforcement
(1) The
powers of authorised officers under sections 77 and 78 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.
(2) However,
section 78(4) of the Fair Trading Act 1987 does not apply to a
police officer in uniform.
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 imposes a condition on a
security agents licence, or suspends a security agents 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 if this Act except to a Deputy
Commissioner or Assistant Commissioner of Police.
44—Insertion of sections 8A to 8C
After section 8 insert:
8A—Applications
for security agents licence to be furnished to Commissioner of Police
(1) The Commissioner must, in relation to each
application for a security agents 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.
(2) As soon as reasonably practicable following
receipt of an application, or information in respect of an application, under
subsection (1), the Commissioner of Police—
(a) must
make available to the Commissioner information about criminal convictions; and
(b) may
make available to the Commissioner other information to which the Commissioner
of Police has access,
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.
8B—Applicant
for security agents licence may be required to provide fingerprints
(1) If a person applies for a security agents
licence, the Commissioner may, by notice in writing, request—
(a) if
the person is a natural person—the person; and
(b) if
the person is a body corporate—each director of the body corporate,
to attend at a specified time and place for the purpose of having
his or her fingerprints taken by a police officer.
(2) If
a person fails to attend for the taking of fingerprints in accordance with a
request under subsection (1), the Commissioner may, by notice in writing,
require the person, within a time fixed by the notice (which may not be less
than 28 days after service of the notice), to make good the default.
(3) If
the person fails to comply with the notice under subsection (2), the
Commissioner may, without further notice, refuse the application but keep the
fee that accompanied the application.
(4) If
the Commissioner has requested a person to attend for the taking of fingerprints
under subsection (1), the Commissioner is not required to consider the
application in relation to which the request has been made until the
fingerprints have been taken and relevant information provided to the
Commissioner by the Commissioner of Police in accordance with this section.
(5) As
soon as reasonably practicable after fingerprints have been taken from a person
by a police officer pursuant to a request 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.
8C—Applicant
for security agents licence may be required to undergo psychological assessment
(1) If
an applicant for a security agents licence is seeking authorisation to perform
the function of controlling crowds, the Commissioner may, for the purpose of
determining whether the applicant is fit and proper to hold such a licence,
request the applicant to take part, at the cost of the applicant, in an
approved psychological assessment.
(2) If
a person fails to take part in a psychological assessment in accordance with a
request under subsection (1), the Commissioner may, by notice in writing,
require the person, within a time fixed by the notice (which may not be less
than 28 days after service of the notice), to make good the default.
(3) If
the person fails to comply with the notice under subsection (2), the
Commissioner may, without further notice, refuse the application but keep the
fee that accompanied the application.
(4) If
the Commissioner has requested a person to take part in a psychological
assessment under subsection (1), the Commissioner is not required to
consider the application in relation to which the request has been made until
the applicant has been assessed and the results of the assessment provided to
the Commissioner.
45—Amendment of section 9—Entitlement to be licensed
(1) Section 9(1)—delete "A natural"
and substitute:
Subject to section 9A, a natural
(2) Section 9(2)—delete "A body
corporate" and substitute:
Subject to section 9A, a body corporate
After section 9 insert:
9A—Factors
to be taken into account in deciding whether to grant application for security
agents licence
(1) 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, the
Commissioner must take into consideration—
(a) the
reputation, honesty and integrity of the person; and
(b) the
reputation, honesty and integrity of people with whom the person associates.
(2) If
the Commissioner of Police has objected to an application for a security agents
licence under section 8A(3), the Commissioner must take into consideration the
grounds for the objection when assessing the application.
(3) An
application for a security agents licence can only be granted if the
Commissioner is satisfied that to grant the application would not be contrary
to the public interest.
47—Amendment of section 11—Appeals
(1) Section 11—after subsection (1) insert:
(1a) The
Commissioner of Police may appeal to the Court against a decision of the
Commissioner granting an application for a security agents licence.
(2) Section 11(3)—delete "The Commissioner"
and substitute:
Subject to section 5B, the Commissioner
(3) Section 11(3)—after "the
applicant" insert:
or the Commissioner of Police
(4) Section 11(4)—after "the
applicant" insert:
or the Commissioner of Police
48—Insertion of sections 11AB to 11AD
After section 11A insert:
11AB—Power
of Commissioner to require security agent to provide fingerprints
(1) The Commissioner may, by notice in writing,
require—
(a) a
natural person who is the holder of a security agents licence; or
(b) a
director of a body corporate that is the holder of a security agents licence,
to attend at a specified time and place for the purpose of having
his or her fingerprints taken by a police officer.
(2) As
soon as reasonably practicable after fingerprints have been taken from a person
by a police officer pursuant to a requirement under subsection (1), 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.
11AC—Power
of Commissioner to require security agents authorised to control crowds to
undertake training
(1) The
Commissioner may, by notice in writing, require the holder of a security agents
licence that authorises the licensee to perform the function of controlling
crowds to complete an approved security industry training course within a
period specified by the Commissioner.
(2) If
a licensed security agent has been required by the Commissioner to complete a
training course under subsection (1), the security agent must, when next
lodging an annual return following the end of the period within which he or she
has been required to complete the course, provide the Commissioner with
evidence that the course has been completed to a satisfactory standard.
(3) In this section—
annual return means the return required to be lodged by a licensed agent under
section 12(2)(b);
approved security industry training course means a course of training approved by
the Commissioner for the purposes of this Act.
11AD—Power
of Commissioner to require security agents authorised to control crowds to take
part in psychological assessment
The Commissioner may, for the purpose of determining whether the
holder of a security agents licence that authorises the licensee to perform the
function of controlling crowds is a fit and proper person, by notice in
writing, require the licensee to attend at a specified time and place for the
purpose of taking part in an approved psychological assessment.
49—Amendment of section 12—Duration of licence and annual fee and return etc
(1) Section 12(3)—delete "under section
11A" and substitute:
or requirement under section 11A, 11AB, 11AC or 11AD
(2) Section 12(4)—delete "28 days after
service of the notice" and substitute:
a time fixed by the notice (which may not be less than 28 days
after service of the notice)
50—Amendment of section 12A—Employment of security agents or investigation agents
(1) Section 12A—delete "an agent" and
substitute:
a security agent or investigation agent
(2) Section 12A—after its present contents as
amended by this section (now to be designated as subsection (1)) insert:
(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.
After Part 3 insert:
Part 3A—Regulation
of security agents
Division 1—Suspension,
cancellation and disqualification
23A—Circumstances
in which Commissioner may suspend security agents licence
(1) Subject to section 23B, if—
(a) the
holder of a security agents licence, or a director of a body corporate that is
the holder of a security agents licence, is charged with an offence of a class
specified by regulation in relation to the functions authorised by the licence;
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 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 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, 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 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 with an offence of a class
specified by regulation in relation to the functions authorised by the licence,
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: $1 250.
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
A person whose security agents licence has been suspended under
section 23A or 23B may appeal to the Court against the decision of the
Commissioner to suspend the licence.
23F—Immunity
No liability attaches to the Commissioner or the Crown for the
exercise or purported exercise in good faith of the Commissioner's power to
suspend a security agents licence.
23G—Cancellation
of licence
(1) If
the holder of a security agents licence is found guilty of an offence of a
class specified by regulation in relation to the functions authorised by the
licence, 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: $1 250.
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 persons 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
agents 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.
(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
agents authorised to control crowds may be required to undertake alcohol
testing
(1) A
police officer may require a licensee, while performing the function of
controlling crowds, to submit to an alcotest.
(2) If
an alcotest conducted under subsection (1) indicates that the prescribed
concentration of alcohol may be present in the blood of the licensee, a police
officer may require the licensee to submit to a breath analysis.
(3) Performance
of a breath analysis required under subsection (2) must be commenced
within 2 hours of the licensee having submitted to the alcotest indicating that
the prescribed concentration of alcohol may be present in the blood of the
licensee.
(4) The
regulations may prescribe the manner in which an alcotest or breath analysis is
to be conducted and may, for example, require that more than one sample of
breath is to be provided for testing or analysis and, in such a case, specify
which reading of the instrument or apparatus will be taken to be the result of the
alcotest or breath analysis for the purposes of this and any other Act.
23L—Concentration
of alcohol in breath taken to indicate concentration of alcohol in blood
If a licensee submits to an alcotest or a breath analysis and the
alcotest apparatus or the breath analysing instrument produces a reading in
terms of a number of grams of alcohol in 210 litres of the person's breath, the
reading will, for the purposes of this Act, be taken to be that number of grams
of alcohol in 100 millilitres of the person's blood.
23M—Evidence
etc
(1) If
the requirements and procedures in relation to breath analysing instruments and
breath analysis under this Act, including subsections (4) and (5), have
been complied with, it must be presumed, in the absence of proof to the
contrary, that the concentration of alcohol so indicated was present in the
blood of the licensee at the time of the analysis.
(2) No evidence can be adduced in rebuttal of
the presumption created by subsection (1) except—
(a) evidence
of the concentration of alcohol in the blood of the licensee as indicated by
analysis of a sample of blood taken and dealt with in accordance with the
procedures prescribed by regulation; and
(b) evidence
as to whether the results of analysis of the sample of blood demonstrate that
the breath analysing instrument gave a false reading of the concentration of
alcohol present in the blood of the licensee.
(3) If
it is proved in proceedings that a concentration of alcohol was present in the
licensee's blood at the time of a breath analysis, it must be conclusively
presumed that that concentration of alcohol was present in the licensee's blood
throughout the period of two hours immediately preceding the analysis.
(4) As soon as practicable after a licensee has
submitted to an analysis of breath by means of a breath analysing instrument,
the person operating the instrument must deliver to the licensee a statement in
writing specifying—
(a) the
reading produced by the breath analysing instrument; and
(b) the
date and time of the analysis.
(5) If a licensee has submitted to an analysis
of breath by means of a breath analysing instrument and the concentration of
alcohol indicated as being present in the blood of that licensee by the breath
analysing instrument is the prescribed concentration of alcohol, the person
operating the instrument must immediately—
(a) give
the person the prescribed oral advice and deliver to the person the prescribed
written notice as to the operation of this Act in relation to the results of
the breath analysis and as to the procedures prescribed for the taking and
analysis of a sample of the person's blood; and
(b) at
the request of the person made in accordance with the regulations, deliver an
approved blood test kit to the person.
(6) A certificate—
(a) purporting
to be signed by the Commissioner of Police and to certify that a person named
in the certificate is authorised by the Commissioner of Police to operate
breath analysing instruments; or
(b) purporting
to be signed by a person authorised to operate breath analysing instruments by
the Commissioner of Police and to certify that—
(i) the
apparatus used by the authorised person was a breath analysing instrument
within the meaning of this Act; and
(ii) the
breath analysing instrument was in proper order and was properly operated; and
(iii) the
provisions of this Act with respect to breath analysing instruments and the
manner in which an analysis of breath by means of a breath analysing instrument
is to be conducted were complied with,
is, in the absence of proof to the contrary, proof of the matters
so certified.
(7) A
certificate purporting to be signed by a police officer and to certify that an
apparatus referred to in the certificate is or was of a kind approved under the
Road Traffic Act 1961 for the purpose of performing alcotests is,
in the absence of proof to the contrary, proof of the matter so certified.
(8) A
certificate purporting to be signed by a police officer and to certify that a
person named in the certificate submitted to an alcotest on a specified day and
at a specified time and that the alcotest indicated that the prescribed
concentration of alcohol may then have been present in the blood of that person
is, in the absence of proof to the contrary, proof of the matters so certified.
(9) A
certificate purporting to be signed by an analyst, certifying as to the
concentration of alcohol, or any drug, found in a specimen of blood identified
in the certificate expressed in grams in 100 millilitres of blood is, in the absence
of proof to the contrary, proof of the matters so certified.
(10) A certificate purporting to be signed by a
person authorised to operate breath analysing instruments by the Commissioner
of Police and to certify that—
(a) a
person named in the certificate submitted to an analysis of breath by means of
a breath analysing instrument on a day and at a time specified in the
certificate; and
(b) the
breath analysing instrument produced a reading specified in the certificate;
and
(c) a
statement in writing required by subsection (4) was delivered in
accordance with that subsection,
is, in the absence of proof to the contrary, proof of the matters
so certified.
(11) A certificate purporting to be signed by a
person authorised to operate breath analysing instruments by the Commissioner
of Police and to certify—
(a) that,
on a date and at a time specified in the certificate, a person named in the
certificate submitted to an analysis of breath by means of a breath analysing
instrument; and
(b) that
the prescribed oral advice and the prescribed written notice were given and
delivered to the person in accordance with subsection (5)(a); and
(c) that—
(i) the
person did not make a request for an approved blood test kit in accordance with
the regulations; or
(ii) at
the request of the person, a kit that, from an examination of its markings,
appeared to the person signing the certificate to be an approved blood test kit
was delivered to the person in accordance with subsection (5)(b),
is, in the absence of proof to the contrary, proof that the
requirements of subsection (5) were complied with in relation to the
person.
(12) A
certificate purporting to be signed by a police officer and to certify that a
person named in the certificate was, at the time of being directed to submit to
an alcotest, performing the function of controlling crowds is, in the absence
of proof to the contrary, proof of the matter so certified.
(13) A
certificate purporting to be signed by a police officer and to certify that a
person named in the certificate was required under this Division to submit to
an alcotest or breath analysis and refused or failed to comply with all
reasonable directions of a police officer in relation to the requirement is, in
the absence of proof to the contrary, proof of the matter so certified.
23N—Commissioner
of Police must report results of breath analysis to Commissioner
The Commissioner of Police must, as soon
as reasonably practicable after a police officer has required a licensee to
submit to an alcotest or breath analysis, provide a report to the Commissioner
setting out—
(a) whether
or not the licensee complied with the requirement; and
(b) if
the licensee complied with the requirement—the result of the alcotest or
analysis.
23O—Cancellation
of licence
(1) The Commissioner may, subject to this
section, cancel a security agents licence if—
(a) the
licensee fails, without reasonable excuse, to comply with—
(i) a
notice or direction under section 23J; or
(ii) a
requirement or direction under section 23K; or
(b) a
sample of the blood or urine of the licensee taken in accordance with
section 23J is found on analysis to be a non-complying sample (within the
meaning of the regulations); or
(c) the
results of a breath analysis undertaken in accordance with this Division
demonstrate that the prescribed concentration of alcohol was present in the
licensee's blood at a time when the licensee was performing the function of
controlling crowds.
(2) The Commissioner must, before exercising
powers under subsection (1) in relation to a licensee—
(a) give
written notice to the licensee of the proposed cancellation, including a
statement of the reasons that the Commissioner considers justify the
cancellation; and
(b) allow
the licensee a period of 14 days (or such longer period as the Commissioner may
in a particular case allow) to show cause why the licence should not be
cancelled.
(3) At the end of the period allowed by the
Commissioner under subsection (2), the Commissioner must—
(a) determine,
having regard to any response received from the licensee, whether or not to
proceed with cancellation of the licence; and
(b) advise
the licensee by notice in writing of the Commissioner's determination.
(4) A
notice under subsection (3)(b) must, if the licence is to be cancelled,
specify the date from which the cancellation is to take effect (which must be
not less than 14 days from the date of the notice) and the grounds for the
Commissioner's determination.
23P—Surrender
of licence
(1) A
person whose security agents licence has been cancelled under section 23O
must, within 7 days of the date on which the cancellation takes effect,
surrender the licence 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: $1 250.
23Q—Appeal
A person whose security agents licence has been cancelled under
section 23O may appeal to the Court against the decision of the
Commissioner to cancel the licence.
52—Amendment of section 25—Cause for disciplinary action
Section 25(1)—after paragraph (e) insert:
(f) in
the case of a natural person licensed or formerly licensed as a security agent—
(i) the
person is not a fit and proper person; or
(ii) 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); or
(iii) it
would be contrary to the public interest if the licensee were to be or continue
to be licensed; or
(g) in
the case of a body corporate licensed or formerly licensed as a security agent—
(i) a
director of the body corporate is not a fit and proper person; or
(ii) it
would be contrary to the public interest if the body corporate were to be or
continue to be licensed.
53—Amendment of section 26—Complaints
Section 26—after "The
Commissioner" insert:
, a police officer
After section 27 insert:
27A—Procedure
in the case of complaint against security agent
(1) On the hearing of a complaint against a
person licensed or formerly licensed as a security agent, the Court—
(a) is
not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must
act according to equity, good conscience and the substantial merits of the case
without regard to technicalities and legal forms.
(2) In
determining whether there is proper cause for disciplinary action against a
person licensed or formerly licensed as a security agent, regard may be had to
such evidence of the conduct (no matter when the conduct is alleged to have
occurred) of the person or persons with whom the person associates (or has
associated at any relevant time) as the Court considers relevant, including
information that existed at the time the licence was granted, regardless of
whether that information was known or could have been made known to the
Commissioner at that time.
After section 36 insert:
36A—Destruction
of fingerprints
(1) This section applies—
(a) to
fingerprints taken under section 8B in connection with an application for a
security agents licence if the application is refused; or
(b) to
fingerprints taken under section 8B in connection with an application for a
security agents licence if the application is granted and the licence is
cancelled or voluntarily surrendered, or the holder, being a body corporate,
dissolved; or
(c) to
fingerprints taken under section 11AB of the holder of a security agents
licence or a director of the holder of a security agents licence if the licence
is cancelled or voluntarily surrendered, or the holder, being a body corporate,
dissolved.
(2) A
person whose fingerprints have been taken under this Act may, if the
fingerprints are fingerprints to which this section applies, apply to the
Commissioner of Police to have the fingerprints, and any copies of the
fingerprints, destroyed.
(3) The
Commissioner of Police may grant or refuse the application as the Commissioner
of Police sees fit.
Section 39—after its present contents (now
to be designated as subsection (1)) insert:
(2) The
Commissioner of Police must, as soon as reasonably practicable after becoming
aware of information relevant to a matter that might constitute proper cause
for disciplinary action under this Act, make the information available to the
Commissioner.
57—Amendment of section 44—Prosecutions
Section 44(2)—after paragraph (c) insert:
(d) a
police officer.
Schedule 1—Transitional provisions
(1) An
amendment to the Gaming Machines Act 1992 effected by a provision
of this Act applies in respect of an application under that Act if the
application is determined after the commencement of that provision irrespective
of whether the application was lodged before or after that commencement.
(2) An
amendment to the Gaming Machines Act 1992 effected by a provision
of this Act applies in respect of a licence or approval granted under that Act,
or a person licensed or approved under that Act, whether the licence or
approval was granted before or after the commencement of that provision.
(1) An
amendment to the Liquor Licensing Act 1997 effected by a provision
of this Act applies in respect of an application under that Act if the
application is determined after the commencement of that provision irrespective
of whether the application was lodged before or after that commencement.
(2) An
amendment to the Liquor Licensing Act 1997 effected by a provision
of this Act applies in respect of a licence or approval granted under that Act,
or a person licensed or approved under that Act, whether the licence or
approval was granted before or after the commencement of that provision.
3—Security and Investigation Agents Act 1995
(1) An
amendment to the Security and Investigation Agents Act 1995
effected by a provision of this Act applies in respect of an application under
that Act if the application is determined after the commencement of that
provision irrespective of whether the application was lodged before or after
that commencement.
(2) An
amendment to the Security and Investigation Agents Act 1995
effected by a provision of this Act applies in respect of a licence granted
under that Act, or a person licensed under that Act, whether the licence was
granted before or after the commencement of that provision.
(3) An
amendment to the Security and Investigation Agents Act 1995
effected by a provision of this Act that provides for the suspension or
cancellation of a person's licence if the person is charged with or found
guilty of an offence applies only if the offence is committed after the
commencement of that provision.
Schedule 2—Statute law revision amendment of Gaming
Machines Act 1992
|
Provision amended |
How amended |
|
Section 3(1) definition of authorised officer, (c) |
Delete "member of the police force" and substitute: police officer |
|
Section 8(2)(a) |
Delete "member of the police force" and substitute: police officer |
|
Section 44A(4)(a)(i) |
Delete "Corporations Law" and substitute: Corporations Act 2001 of the Commonwealth |
|
Section 70(1) |
Delete "notwithstanding" and substitute: despite |
Schedule 3—Statute law revision amendment of Security
and Investigation Agents Act 1995
|
Provision amended |
How amended |
|
Section 4(a) |
Delete "member of the police force of this State" and
substitute: police officer |
|
Section 4(d) |
Delete "Local Government Act 1934" and
substitute: |
|
Section 4(f)(vi) |
Delete "or the Starr-Bowkett Societies Act 1975" |
|
Section 4(f)(viii) |
Delete "Consumer Credit Act 1972" and
substitute: Credit Administration Act 1995 |
|
Section 4(f)(ix) |
Delete "Insurance (Agents and Brokers) Act 1984"
and substitute: |
|
Section 20(1)(a) |
Delete "member of the police force" and substitute: police officer |
|
Section 22 |
Delete "member of the police force" wherever occurring
and substitute in each case: police officer |