Security and Investigations Agents Act 2002

Security and Investigations Agents Act 2002

An Act to provide for the licensing and control of security and investigations agents

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Security and Investigations Agents Act 2002 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

In this Act –

agent licence means a licence referred to in section 4(1) ;

approved means approved by the Commissioner;

authorised person means a person authorised by the Commissioner;

commercial agent means a person who, for monetary or other consideration and on behalf of any other person, does any of the following activities:

(a) ascertains the whereabouts of, or repossesses, goods or chattels that are the subject of a security interest;

(b) collects or requests the payment of debts;

(c) executes legal process for the enforcement of a judgment or order of a court;

(d) levies distress;

(e) any other prescribed act;

commercial sub-agent means a person employed by, or acting for, a commercial agent who, for monetary or other consideration, does any of the activities a commercial agent may do;

Commissioner means Commissioner for Corporate Affairs;

competency standards means the competency standards referred to in section 9 ;

creditor means a person on behalf of whom a commercial agent is acting, or has been engaged to act, in recovering or attempting to recover a debt;

debt includes any interest, costs or other charges for which a debtor is legally liable to a creditor;

debtor means a person from whom a commercial agent has recovered or is attempting to recover a debt on behalf of a creditor;

employee licence means a licence referred to in section 4(2) ;

harassment means any conduct that –

(a) tends to intimidate, embarrass, ridicule or shame; or

(b) involves any undue frequent visits to premises or communications with the occupants of premises; or

(c) involves any statement or suggestion made to a person that action may be taken to embarrass or shame the person if the person fails to pay any debt owed by the person;

identity card means an identity card referred to in section 10(4) ;

inquiry agent means a person who, for monetary or other consideration and on behalf of any other person, does any of the following activities:

(a) obtains or provides information with respect to –

(i) the personal character or actions of any person; or

(ii) the business or occupation of any person;

(b) obtains evidence for the purpose of legal proceedings;

(c) searches for missing persons;

(d) any other prescribed act;

licence means an agent licence and an employee licence;

officer, in relation to a body corporate, means –

(a) in the case of a company formed or incorporated under the Corporations Act that is taken to be registered in Tasmania, a director, manager or secretary of that company; and

(b) in the case of any other company incorporated under the Corporations Act, the person who has the control and management of the business carried on by that company in the State;

place of business means any premises, commercial or residential, at which business is carried on under a licence;

prescribed offence means –

(a) an offence involving dishonesty, whether committed in the State or elsewhere; or

(b) an offence involving violence, whether committed in the State or elsewhere; or

(c) an offence under Part V of the Poisons Act 1971 or similar offence under the law of another State or a Territory of the Commonwealth; or

(d) an offence relating to the possession and use of a firearm, or any other weapon, that would disqualify the applicant from holding a licence under the Firearms Act 1996 ; or

(e) an offence against this Act;

prescribed record means a prescribed record as defined in the Records of Offences (Access) Act 1981 ;

register means the register of licences kept under section 20 ;

security agent means a person who, for monetary or other consideration, guards property or keeps property under surveillance;

security guard means a person employed by, or acting for, a security agent who, for monetary or other consideration, guards property or keeps property under surveillance;

security interest means any interest in, or power over, goods or chattels that secures payment of a debt or performance of any other obligation;

trust account means a trust account maintained under section 28 .

PART 2 - Licences

4.   Acting as agents without licence

(1)  A person must not undertake the activities of a security agent, commercial agent or inquiry agent unless that person holds an agent licence.

Penalty:  In the case of –

(a) a body corporate, 1 000 penalty units; and

(b) a natural person, 200 penalty units.

(2)  A person must not undertake the activities of a commercial sub-agent or security guard unless that person –

(a) holds an employee licence; and

(b) is employed by a person holding an agent licence.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 100 penalty units.

(3)  A person must not employ another person as a security guard or commercial sub-agent or direct another person to undertake the activities of a security guard or commercial sub-agent unless the person holds an agent licence.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 100 penalty units.

5.   Ineligibility to apply for licence

(1)  A person is ineligible to apply for a licence if the person has been convicted in Tasmania or elsewhere of one or more indictable offences and sentenced to –

(a) imprisonment for a term or terms in the aggregate of 3 years or more; or

(b) a period of detention for 3 years or more under a restriction order made under section 75(1)(e) of the Sentencing Act 1997 or an equivalent order elsewhere.

(2)  Ineligibility to apply for a licence extends for a period of 5 years from the completion of the term of imprisonment or period of detention.

(3)  A conviction in respect of which a free pardon has been granted is to be disregarded for the purpose of subsection (1) .

(4)  A person who is on parole is taken to be serving a sentence of imprisonment.

6.   Application

(1)  A person who is eligible may apply to the Commissioner for a licence.

(2)  An application for a licence is to –

(a) be in an approved form; and

(b) state the activities in respect of which the application is sought; and

(c) be accompanied by any prescribed record relating to the applicant; and

(d) be accompanied by the prescribed fee.

7.   Character report

On receipt of an application for a licence, the Commissioner must –

(a) forward the application to the Commissioner of Police; and

(b) request the Commissioner of Police to provide a report as to whether the applicant is a fit and proper person to hold a licence.

8.   Grant or refusal of application

(1)  The Commissioner may –

(a) grant an application for a licence subject to any conditions the Commissioner determines; or

(b) refuse to grant the application.

(2)  The Commissioner may refuse to grant an application for a licence if satisfied that –

(a) the applicant –

(i) is not a fit and proper person to hold a licence; or

(ii) has not attained the age of 18 years; or

(iii) does not have the required competency standards; or

(iv) has been convicted of a prescribed offence; or

(v) other than an applicant for an employee licence in respect of a security guard, is an undischarged bankrupt or a person who has made any arrangement with creditors that have not been completed; or

(vi) is unable to demonstrate, to the satisfaction of the Commissioner, that he or she will be actively involved in the activity to be authorised under the licence; or

(b) in the case of a body corporate, the licence would not be granted to an officer of that body; or

(c) the granting of the licence is contrary to the public interest.

9.   Competency standards

The Commissioner may determine competency standards relating to the education, practical skills and experience required of a person as a holder of a licence.

10.   Issue of licence

(1)  If the Commissioner grants an application to a person for a licence in respect of any activities relating to a commercial agent, inquiry agent or security agent, the Commissioner is to issue to the person –

(a) an agent licence; and

(b) an identity card.

(2)  If the Commissioner grants an application to a person for a licence in respect of any activities relating to a commercial sub-agent or security guard, the Commissioner is to issue to the person –

(a) an employee licence; and

(b) an identity card.

(3)  A licence is to –

(a) be in an approved form; and

(b) specify the type of licence; and

(c) specify the name and business address of the holder; and

(d) specify the date on which the licence is issued; and

(e) specify the date on which the licence expires; and

(f) specify any conditions of the licence.

(4)  An identity card is to –

(a) be in an approved form; and

(b) display a photo of the person to whom the identity card is issued; and

(c) specify the type of licence held by the person; and

(d) specify the name and business address of the person; and

(e) specify the date on which the licence is issued; and

(f) specify the date on which the licence expires; and

(g) specify any conditions of the licence.

11.   Authority of agent licence

An agent licence authorises the holder to undertake the activities of any or all of the following as specified in the licence:

(a) a commercial agent;

(b) an inquiry agent;

(c) a security agent.

12.   Authority of employee licence

An employee licence authorises the holder to undertake the activities of either or both of the following as specified in the licence:

(a) a commercial sub-agent;

(b) a security guard.

13.   Conditions

(1)  A licence is subject to any condition specified in the licence.

(2)  The holder of a licence must comply with a condition of the licence.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 100 penalty units.

(3)  The Commissioner, by an endorsement on a licence, may vary any condition of the licence.

14.   Duration of licence

A licence is in force for the period specified in the licence unless sooner cancelled.

15.   Cancellation of licence

(1)  The Commissioner, by notice served on the holder of a licence, may cancel the licence –

(a) if satisfied that any matter referred to in section 8(2) applies; or

(b) if satisfied that the holder of the licence –

(i) gave information that is false or misleading; or

(ii) failed to comply with this Act; or

(iii) failed to comply with any condition of the licence; or

(c) for any other prescribed reason.

(2)  If a court convicts a person of an offence under this Act, the court, in addition to imposing any penalty, may cancel a licence held by the person.

(3)  The cancellation of a licence under subsection (1) takes effect on the date of service of the notice.

16.   Suspension of licence

(1)  The Commissioner, by notice served on the holder of a licence, may suspend the licence for a period not exceeding 90 days if satisfied that it is in the public interest to do so.

(2)  If a court convicts a person of an offence under this Act, the court, in addition to imposing any penalty, may suspend the licence held by the person.

(3)  A suspended licence ceases to have effect during the period of suspension.

(4)  The suspension of a licence takes effect on the date of service of the notice.

17.   Surrender of licence and identity card

(1)  A person whose licence has expired or has been cancelled must surrender the licence and his or her identity card to the Commissioner.

Penalty:  In the case of –

(a) a body corporate, 100 penalty units; and

(b) a natural person, 20 penalty units.

(2)  The holder of a licence who no longer intends to undertake any activity under the authority of the licence must surrender the licence and his or her identity card to the Commissioner.

Penalty:  In the case of –

(a) a body corporate, 100 penalty units; and

(b) a natural person, 20 penalty units.

18.   Death of licensee

(1)  If the holder of a licence dies, the person's legal personal representative is to notify the Commissioner –

(a) of that fact; and

(b) of the name of the person nominated to undertake any activity under the licence.

(2)  A person nominated under subsection (1)(b) must be a person to whom a licence may be issued under this Act.

(3)  A person nominated under subsection (1)(b) may only undertake any activity specified in the licence for a period not exceeding 3 months after the death of the holder of the licence.

19.   Duplicate licences and identity cards

The Commissioner may issue a duplicate licence or identity card on request and on payment of a prescribed fee if satisfied that the licence or identity card has been lost, destroyed or mutilated.

20.   Register of licences

(1)  The Commissioner is to keep a register of licences in any form the Commissioner considers appropriate.

(2)  The register is to contain details of the following:

(a) the date on which a licence is issued;

(b) the date on which the licence expires;

(c) the name and business address of the holder of a licence;

(d) the renewal of a licence;

(e) the cancellation or suspension of a licence;

(f) the surrender of a licence;

(g) any other matter the Commissioner considers appropriate.

(3)  A person, at any reasonable time and on payment of a prescribed fee, may inspect the register.

(4)  The Commissioner may publish a list of all current licences in any manner or form the Commissioner determines.

21.   Change of address

The holder of a licence must notify the Commissioner of any change of address within 30 days after that change.

Penalty:  In the case of –

(a) a body corporate, 100 penalty units; and

(b) a natural person, 20 penalty units.

PART 3 - Offences

Division 1 - General

22.   Harassment

(1)  The holder of a licence must not engage in harassment while undertaking any activity under the licence.

Penalty:  In the case of –

(a) a body corporate, 100 penalty units; and

(b) a natural person, 20 penalty units.

(2)  A person who is exempted from holding an agent licence under section 41 must not engage in harassment while undertaking any activity referred to in that section.

Penalty:  In the case of –

(a) a body corporate, 100 penalty units; and

(b) a natural person, 20 penalty units.

23.   Fees if not licensed

A person must not charge or recover any fee, commission or other consideration for undertaking any activity of a commercial agent, a security agent or an inquiry agent unless at that time the person was the holder of the appropriate licence.

Penalty:  In the case of –

(a) a body corporate, 100 penalty units; and

(b) a natural person, 20 penalty units.

24.   Advertisements

(1)  The holder of a licence, in any advertisement relating to undertaking any activity under the licence, must state –

(a) the name under which the person holds the licence; and

(b) the address of his or her place of business.

Penalty:  In the case of –

(a) a body corporate, 100 penalty units; and

(b) a natural person, 20 penalty units.

(2)  Subsection (1) does not apply to an advertisement relating solely to the recruitment of staff.

25.   Display of notice

The holder of a licence must display the licence in a conspicuous position in his or her place of business.

Penalty:  In the case of –

(a) a body corporate, 100 penalty units; and

(b) a natural person, 20 penalty units.

26.   Use of licence or identity card by others

The holder of a licence must not allow the licence or his or her identity card to be used by another person.

Penalty:  In the case of –

(a) a body corporate, 1 000 penalty units; and

(b) a natural person, 200 penalty units.

27.   Producing licences and wearing identity cards

(1)  The holder of a licence must produce his or her identity card on demand from –

(a) a police officer; or

(b) an authorised person; or

(c) any other person requiring confirmation.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 100 penalty units.

(2)  A security agent or security guard must wear his or her identity card while undertaking the activities of a security agent or security guard so that it is clearly visible.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 100 penalty units.

Division 2 - Commercial agents

28.   Trust accounts

(1)  The holder of an agent licence who undertakes any activity of a commercial agent must –

(a) maintain a trust account in an authorised deposit-taking institution in this State; and

(b) deposit any money received for or on behalf of a client into that trust account; and

(c) keep that money in that trust account until –

(i) paid to the client or reimbursed as the client directs; or

(ii) ordered otherwise by an order of a court.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 100 penalty units.

(2)  The holder of an agent licence must not use money in a trust account of the holder –

(a) for the payment of debts of the holder; or

(b) for the payment of any creditor of the holder; or

(c) for an attachment or execution under an order of a court at the instance of any creditor of the holder.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 100 penalty units.

(3)  The Commissioner, by notice in writing, may require the holder or previous holder of an agent licence who undertakes any activity of a commercial agent to provide any information the Commissioner considers necessary to investigate whether or not an offence has been committed under this section.

29.   Financial records

(1)  The Commissioner, by notice in writing, may require the manager of an authorised deposit-taking institution to –

(a) provide written information as to –

(i) whether or not there is or was any trust account in the name of a specified person; and

(ii) the address at which any document or record relevant to that trust account is kept; and

(b) produce for inspection to an authorised person any document or record relating to that trust account; and

(c) allow an authorised person to inspect, and take copies of, or extracts from, any such document or record.

(2)  A person must comply with a requirement.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 200 penalty units.

(3)  A requirement under subsection (1)(b) is taken not to be complied with if the document or record is not produced at the address given by the authorised deposit-taking institution under subsection (1)(a)(ii) as the address at which the document or record is kept.

30.   Audits

(1)  A commercial agent who is required to maintain a trust account under section 28(1) must arrange for that trust account to be audited in accordance with this section within 2 months after 30 June in each year.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 100 penalty units.

(2)  An audit is to be carried out –

(a) by a person who is a member of any of the following:

(i) the Institute of Chartered Accountants;

(ii) the Australian Society of Certified Practising Accountants;

(iii) the National Institute of Accountants; and

(b) in accordance with any requirements the Commissioner determines relating to the matters to be covered.

(3)  A person conducting an audit is to issue a certified report of the audit in an approved form.

31.   Reports

(1)  A commercial agent must provide a report to the Commissioner by 30 September in each year.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 100 penalty units.

(2)  A report –

(a) is to contain any information the Commissioner determines; and

(b) is to be accompanied by the certified report of the audit issued under section 30(3) .

(3)  The Commissioner may require a commercial agent to provide further reports as the Commissioner determines.

32.   Records

(1)  The holder of an agent licence who undertakes any activity of a commercial agent must keep records in a secure place at his or her place of business for a period of 6 years of –

(a) any transaction entered into in the course of undertaking the activity; and

(b) any person employed by the holder for the purpose of undertaking the activity.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 100 penalty units.

(2)  A person must not falsify or mutilate any records referred to in subsection (1) .

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 200 penalty units.

33.   Possession of motor vehicles

A commercial agent, a commercial sub-agent undertaking any activity of a commercial agent or any person referred to in section 41(1)(k) who takes possession of a motor vehicle within the meaning of the Vehicle and Traffic Act 1999 that is subject to a security interest must –

(a) inform a police officer; and

(b) deliver or send by post, within 24 hours, to the nearest police station written particulars in duplicate of the motor vehicle.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 200 penalty units.

34.   Place of business

The holder of an agent licence who undertakes any activity of a commercial agent must not invite any person to do business, or any debtor from whom he or she is seeking to recover a debt, at a place other than the place of business specified in the licence.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 200 penalty units.

35.   Recovery of money

The holder of an agent licence who undertakes any activity of a commercial agent or the holder of an employee licence who undertakes any activity of a commercial sub-agent must not demand directly or indirectly from a debtor any payment other than the debt owed.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 200 penalty units.

PART 4 - Miscellaneous

36.   Disputes

(1)  In any proceedings for the recovery of money under an agreement between the holder of a licence and his or her client where there is a dispute relating to money charged for services by the holder, the court may –

(a) order that the client's liability to the holder is limited to a sum specified in the order; and

(b) set aside, wholly or in part, or alter the agreement as the court considers appropriate; and

(c) give judgment for any party to the agreement the court considers appropriate.

(2)  A client of a holder of a licence may institute proceedings for an order under this section.

37.   Appeals

(1)  A person may apply for a review of the decision of the Commissioner to –

(a) refuse to grant an application for a licence; or

(b) impose any condition of a licence; or

(c) vary a condition of a licence; or

(d) cancel a licence; or

(e) suspend a licence.

(2)  An application is to be made in accordance with the Magistrates Court (Administrative Appeals Division) Act 2001 .

(3)  A review is to be heard and determined under the Magistrates Court (Administrative Appeals Division) Act 2001 .

38.   Investigations

(1)  The Commissioner or an authorised person may carry out any investigation necessary to –

(a) consider an application for a licence; or

(b) ascertain whether or not an offence under this Act has been, or is being, committed.

(2)  In carrying out an investigation, the Commissioner or authorised person may –

(a) require any person to provide any relevant information, including financial and other confidential information, within a specified period; and

(b) gain access to, and take copies of, any relevant records.

(3)  A requirement made of a company is to be made to –

(a) any officer of that company; or

(b) a person apparently having the management of the business carried on by that company.

(4)  A person must comply with a requirement.

Penalty:  In the case of –

(a) a body corporate, 500 penalty units; and

(b) a natural person, 100 penalty units.

39.   Delegation

The Commissioner may delegate any of the Commissioner's powers or functions, other than this power of delegation, to any authorised person.

40.   Evidentiary provisions

(1)  In any proceedings, a document purporting to be a licence is evidence of that fact.

(2)  An allegation in a complaint that a person was, or was not, at any date specified in the complaint the holder of a licence is evidence of that fact.

(3)  A document purporting to be signed by the Commissioner stating that a person named in the document is or is not, or was or was not, at any date specified in the document the holder of a licence is evidence of that fact.

(4)  A certified copy of any entry in the register signed by the Commissioner is evidence of the facts contained in that copy.

41.   Exemptions

(1)  The following persons are exempted from the requirement to hold an agent licence:

(a) a person acting in good faith in an office created by an Act of the Commonwealth or of this State or any other State or a Territory of the Commonwealth while carrying out any activity of a commercial agent or an inquiry agent;

(b) a person acting in good faith in an office under the Crown in the right of the Commonwealth or of this State or any other State or a Territory of the Commonwealth while carrying out any activity of a commercial agent or an inquiry agent;

(c) a legal practitioner acting in the ordinary course of his or her profession, or a clerk employed by a legal practitioner acting in the ordinary course of that employment, while carrying out any activity of a commercial agent or an inquiry agent;

(d) a member of the Institute of Chartered Accountants in Australia, the Australian Society of Certified Practising Accountants or the National Institute of Accountants acting in the ordinary course of his or her profession while carrying out any activity of a commercial agent or an inquiry agent;

(e) a trustee company, a building society, a friendly society, or a person carrying on the business of insurance, insurance broking or banking, acting in the ordinary course of that business, or an employee of such a company, society or person acting in the ordinary course of that employment, while carrying out any activity of a commercial agent or an inquiry agent;

(f) a person employed by the holder of a licence to perform clerical or secretarial functions acting in the ordinary course of that employment while carrying out any activity of a commercial agent or an inquiry agent;

(g) a person employed by a commercial agent for the purpose of debt collection by telephone acting in the ordinary course of that employment;

(h) a person employed by a person who is not a commercial agent acting in the ordinary course of that employment;

(i) the holder of a real estate agents licence under the Auctioneers and Real Estate Agents Act 1991 acting in the ordinary course of that employment while carrying out any activity of a commercial agent or an inquiry agent;

(j) a member of the Australasian Institute of Chartered Loss Adjusters acting in the ordinary course of his or her profession while carrying out any activity of a commercial agent or an inquiry agent;

(k) an employee of a holding company or the subsidiary of a holding company acting as a commercial agent for another company that is related to the first-mentioned company in the course of that employment while carrying out any activity of a commercial agent or an inquiry agent;

(l) any other prescribed person.

(2)  A member of the Defence Force of the Commonwealth performing the functions of such a member is not required to hold a licence while carrying out any activity of a commercial agent, a security agent, an inquiry agent, a commercial sub-agent or a security guard.

42.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Regulations may be made so as to apply differently according to any matter, condition, limitation, restriction, exception or circumstance specified in the regulations.

(3)  The regulations may authorise any matter to be from time to time determined, applied or regulated by the Commissioner.

(4)  The regulations may be of a savings or transitional nature consequent on the enactment of this Act.

(5)  Regulations under subsection (4) may take effect from the commencement of this Act or on a later day.

43.   Savings and transitional provisions

The savings and transitional provisions set out in Schedule 1 have effect.

44.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Justice and Industrial Relations; and

(b) the department responsible to the Minister for Justice and Industrial Relations in relation to the administration of this Act is the Department of Justice and Industrial Relations.

45.    Commercial and Inquiry Agents Act 1974 repealed

The Commercial and Inquiry Agents Act 1974 is repealed and any Statutory Rules made under that Act are rescinded or revoked.

SCHEDULE 1 - Savings and Transitional provisions

Section 43

1.   Interpretation

In this Schedule –

commencement day means the day on which this Act commences;

repealed Act means the Commercial and Inquiry Agents Act 1974 .

2.   Licences

(1) A licence to act as a commercial agent, an inquiry agent or a security agent in force under the repealed Act immediately before the commencement day is, on that day, an agent licence until it ceases to have effect as specified in the licence.

(2) A licence to act as a commercial sub-agent or a security guard in force under the repealed Act immediately before the commencement day is, on that day, an employee licence until it ceases to have effect as specified in the licence.

(3) An application for a licence made under the repealed Act and not determined before the commencement day is, on that day, to be treated as an application for the appropriate licence under this Act.

3.   Proceedings

Any proceedings instituted but not heard or determined under the repealed Act before the commencement day may, on and after that day, be heard and determined under that Act.

[Second reading presentation speech made in:

House of Assembly on 19 MARCH 2002

Legislative Council on 23 MAY 2002]