South Australian Numbered Acts South Australian Numbered ActsAfter 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 by a police officer or the Director of Public
Prosecutions 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
(1) 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.
(2) The Court must
hear and determine an appeal under this section as expeditiously as possible.
(3) If an appeal under
this section is not determined within 3 months of the commencement of the
appeal, the suspension to which the appeal relates will, unless the Court
orders otherwise, be stayed until the appeal is finally determined or
withdrawn.
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 agent authorised to control crowds may be required to
undertake drug testing
(1) A police officer
or an authorised officer may, by notice in writing, direct a licensee to
attend at a specified time and place for the purpose of undertaking a drug
testing procedure to determine the level of any prescribed drug in any form in
the blood or urine of the agent.
(2) A notice under
subsection (1) must specify what sample or samples are to be taken.
(3) A police officer
or authorised officer may give directions reasonably required for purposes
connected with the administration or enforcement of this section.
(4) If a sample of
blood or urine given by a licensee under this section is found on analysis to
be a non-complying sample (within the meaning of the regulations),
the Commissioner or the Commissioner of Police may—
(a)
determine the costs and expenses of carrying out the analysis; and
(b)
recover the amount so determined from the licensee as a debt in a court of
competent jurisdiction.
(5) Regulations may be
made under this section—
(a)
regulating the manner of taking and dealing with samples of blood and urine
and their analysis; and
(b)
providing for certificate evidence for use in any proceedings as to the taking
and analysis of any urine or blood sample and the authority of a person to
carry out an analysis; and
(c)
requiring a licensee to produce the prescribed form of identification at the
time a sample of blood or urine is taken, and providing that a failure to do
so is taken to be a failure to comply with a direction under this section.
23K—Security agent authorised 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.