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Private Security Amendment Bill 2010
Introduction Print
EXPLANATORY MEMORANDUM
General
The Private Security Amendment Bill will amend the Private Security Act
2004 to implement legislative changes agreed to by the Council of Australian
Governments in July 2008.
Clause Notes
Clause 1 sets out the purpose of the Bill.
Clause 2 provides for the commencement of the Bill. Each of the
provisions of the Bill will commence on the day that it is
proclaimed or on 4 July 2011, whichever is later.
Clause 3 refers to the Private Security Act 2004 as the Principal Act.
Clause 4 inserts a number of new definitions into the Principal Act.
The definition of security guard is divided into a number of
sub-definitions including armed guard, cash-in-transit guard,
control room operator, guard with a dog, monitoring centre
operator and unarmed guard. A person who carries on any of
these activities must be appropriately licensed under the Principal
Act.
The new definition of private security trainer is designed to
cover both individual trainers as well as organisations, that are
registered education and training organisations, and that engage
individual trainers to provide or assess private security training
that relates to a licensable activity.
The new definition of protected information broadly covers
criminal intelligence and means information that is: (i) likely to
reveal the identity of certain persons; (ii) places at risk a police
investigation; (iii) risks disclosure of a investigative method; or
(iv) is otherwise not in the public interest. It relates to a decision
made under the Principal Act by the Chief Commissioner.
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Clause 5 adds to the offence provision in the Principal Act that deals with
providing certain private security services without holding a
business licence (that is, section 5) the activity of providing
private security training.
Clause 6 adds to the offence provision in the Principal Act that deals with
holding out to provide certain private security services without
holding a business licence (that is, section 6) the activity of
providing private security training.
Clause 7 adds to the offence provision in the Principal Act that deals with
providing certain private security services without holding an
individual licence (that is, section 7) the activity of providing
private security training.
Clause 8 adds to the offence provision in the Principal Act that deals with
holding out to provide certain private security services without
holding an individual licence (that is, section 8) the activity of
providing private security training.
Clause 9 substitutes the existing section 13 of the Principal Act with a new
section. The new section 13 will set out the offences that will
disqualify a person from holding a private security licence, that
is, make the person a "prohibited person". This is an expanded
list from that in the current section 13 in the Principal Act.
The new list will include offences involving trafficking or
cultivating a commercial quantity of certain drugs, assault or
violence against the person, dishonesty or theft, weapons,
firearms and terrorism. In general and subject to qualifications,
a person convicted within the last ten years or a person simply
found guilty within the last five years of one of these offences
will be ineligible to hold a private security licence.
Clause 10 adds to the provision in the Principal Act that permits the Chief
Commissioner to grant a business licence to a person (that is,
section 14) the activity of providing private security training.
The clause also allows the Chief Commissioner to license a
person to carry on various sub-activities of a security guard.
Clause 11 adds to the provision in the Principal Act that permits the Chief
Commissioner to grant an individual licence to a person (that is,
section 15) the activity of providing private security training.
The clause also allows the Chief Commissioner to license a
person to carry on various sub-activities of a security guard.
Clause 12 amends section 17 of the Principal Act. The following persons
will be required to provide fingerprints when applying for (and in
some cases, when renewing) a private security licence: individual
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applicants (in all cases); officers of corporate applicants (in all
cases); and close associates of applicants (when requested by the
Chief Commissioner).
The Chief Commissioner will be required to destroy the prints
when he or she no longer has use for them. The Chief
Commissioner will no longer have a use for the prints when the
licence to which they relate is cancelled or lapses and is not
renewed or if an application that they were provided in support of
is not granted.
Clause 13 repeals section 22 of the Principal Act. Section 22 relates to the
ability of the Chief Commissioner to require certain persons to
provide fingerprints for the purpose of conducting an
investigation. The Bill mandates that all persons must provide
fingerprints when they apply for a licence and therefore this
provision is no longer required.
Clause 14 amends section 25 of the Principal Act by replacing the words
"a particular indictable" with the word "any". This means that
the Chief Commissioner will be able to deny a person an
individual licence if the person has been convicted, found guilty,
or charged with any indictable offence that, in the opinion of the
Chief Commissioner, renders the person unsuitable to hold a
private security licence.
Clause 15 amends section 26 of the Principal Act by replacing the words
"a particular indictable" with the word "any". This means that
the Chief Commissioner will be able to deny a person a business
licence if the person has been convicted, found guilty, or charged
with any indictable offence that, in the opinion of the Chief
Commissioner, renders the person unsuitable to hold a private
security licence.
Clause 16 inserts a new section 29A into the Principal Act. Section 29A
sets out what the Chief Commissioner must do if he or she
decides not to grant a licence on the basis of protected
information. In these circumstances and to the extent that the
decision relates to protected information, sections 27, 28, and 29
of the Principal Act do not apply and the applicant does not
receive reasons for the decision.
The Chief Commissioner must notify the applicant that the
application has been denied because the applicant or another
relevant person has failed to meet the necessary probity
requirements, create a written record of the reasons for the
decision and inform the applicant that the applicant has a right
to review the decision in VCAT.
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The section excludes the application of section 8 of the
Administrative Law Act 1978.
These procedures are adopted in order to keep protected
information confidential.
Clause 17 amends section 38 of the Principal Act. The effect of this
amendment will be that the Chief Commissioner will be able to
request a person who is renewing a private security licence to
provide a set of fingerprints of all relevant persons as if the
person were making a new application for the licence.
Clause 18 amends section 47 of the Principal Act by allowing the Chief
Commissioner to cancel a private security licence if a close
associate of a licence holder becomes a prohibited person.
The clause also amends section 47 so that the Chief
Commissioner is able to cancel a licence if a licence holder or a
relevant person in relation to a private security business licence
(which is defined in the new provision) fails to meet the probity
requirements in sections 25 and 26 respectively of the Principal
Act.
Clause 19 amends section 61 of the Principal Act by replacing the words
"a particular indictable" with the word "any". This change allows
a court to suspend or cancel a licence if its holder is convicted or
found guilty of any offence that, in the opinion of the court, so
warrants suspension or cancellation.
Clause 20 is a consequential amendment that applies section 17(3) and (4)
of the Principal Act to section 68.
Clause 21 is a statute law revision amendment to section 129 of the
Principal Act.
Clause 22 inserts a new paragraph into section 150(1) of the Principal Act.
This will allow an applicant to seek review in VCAT of a
decision of the Chief Commissioner to cancel a licence if a close
associate of the holder becomes a prohibited person.
Clause 23 inserts new sections 150A, 150B, 150C, 150D and 150E into the
Principal Act. These sections set out the review procedures of a
decision to refuse or cancel a licence by the Chief Commissioner
based on protected information. The overarching purpose of
these procedures is to allow a person who has had an application
refused or a licence cancelled, as a result of a decision based on
protected information, to have a fair review of that decision while
ensuring that the protected information is not released to the
person or to the public.
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Section 150A provides that if VCAT receives an application for
review under section 150(1)(a), (c) or (ea) it must ask the Chief
Commissioner whether the grounds on which the decision was
made involved protected information.
Section 150B provides that if the Chief Commissioner's decision
did involve protected information, VCAT must appoint a special
counsel to represent the interests of the applicant. The special
counsel must be a barrister and must possess appropriate skills.
Before the special counsel attends the hearing or receives any
confidential evidence he or she is able to take instructions from
the applicant but after that time must do so only in writing and
following approval by VCAT. VCAT may require the special
counsel to sign an undertaking of confidentiality.
Section 150C provides that VCAT may determine that a hearing
or any part of it be held in private then only the Chief
Commissioner and the special counsel are entitled to be present.
Each party is able to make submissions. In its determinations,
VCAT must primarily determine whether all or part of the
evidence before it amounts to "protected information". If it
determines that none or some only of the evidence amounts to
protected information, the applicant must be admitted to that
part of the hearing that deals with evidence that relates to
non-protected information.
Section 150D provides that where that part of the evidence does
relate to protected information, the provisions of section 150C(3)
continue to apply. Then VCAT must take all steps and
precautions to ensure that the protected information is not
released. It must then determine what weight to give to the
evidence before it and whether the licence should be granted or
reinstated. In giving its decision, VCAT must state only that the
licence is granted or reinstated or otherwise. If the licence is not
to be granted or reinstated, it must state only that the applicant
has failed to meet the probity requirements.
Section 150E provides general provisions that apply to VCAT
hearings that involve protected information. In these
circumstances: (i) the tribunal must be constituted by a
presidential member; (ii) the Chief Commissioner may determine
to grant the licence and the hearing must stop; and (iii) certain
provisions of the Victorian Civil and Administrative Tribunal
Act 1998 and section 8 of the Administrative Law Act 1978 do
not apply.
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Clause 24 repeals section 172(1)(b) of the Principal Act. Section 172(1)(b)
is not required as the Chief Commissioner will no longer be
approving security industry training providers but will rather be
licensing them.
Additionally, the clause amends section 172(2) to allow the
Chief Commissioner to suspend an approval given under
section 172(1).
Clause 25 amends section 176 of the Principal Act by replacing the words
"a particular indictable" with the word "any". This means that a
private security licence-holder must inform the Chief
Commissioner if he or she is charged with any indictable offence.
Clause 26 provides that the Bill is repealed on 4 July 2012. The repeal of
this Bill does not affect the continued operation of the
amendments made by this Bill (see section 15(1) of the
Interpretation of Legislation Act 1984).
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