Part 5Miscellaneous

Part 5—Miscellaneous 31—Delegations (1) The Commissioner may delegate any of the Commissioner's functions or powers under this Act— (a) to a person employed in the Public Service; or (b) to the person for the time being holding a specified position in the Public Service; or (c) to any other person under an agreement under this Act between the Commissioner and an organisation representing the interests of agents or security industry trainers or a particular class of agents or security industry trainers. (2) The Minister may delegate any of the Minister's functions or powers under this Act (except the power to direct the Commissioner). (3) A delegation under this section— (a) must be in writing; and (b) may be conditional or unconditional; and (c) is revocable at will; and (d) does not prevent the delegator from acting in any matter. 32—Agreement with professional organisation (1) The Commissioner may, with the approval of the Minister, make an agreement with an organisation representing the interests of agents or security industry trainers or a particular class of agents or security industry trainers under which the organisation undertakes a specified role in the administration or enforcement of this Act. (2) The agreement— (a) must be in writing and executed by the Commissioner and the organisation; and (b) may contain delegations by the Commissioner of functions or powers under this Act or the Fair Trading Act 1987; and (c) must set out any conditions governing the performance or exercise of functions or powers conferred on the organisation; and (d) must make provision for the variation and termination of the agreement by the Commissioner with the approval of the Minister or the organisation. (3) The Commissioner may not delegate for the purposes of the agreement— (a) functions or powers under Part 2; (b) power to request the Commissioner of Police to investigate and report on matters under Part 5; (c) power to commence a prosecution for an offence against this Act. (4) A delegation by the Commissioner for the purposes of the agreement— (a) has effect subject to the conditions specified in the agreement; and (b) may be varied or revoked by the Commissioner in accordance with the terms of the agreement; and (c) does not prevent the Commissioner from acting in any matter. (5) The Minister must, within six sitting days after the making of an agreement, cause a copy of the agreement to be laid before both Houses of Parliament. 33—Exemptions (1) The Minister may, on application by a person, exempt the person from compliance with a specified provision of this Act. (2) An exemption is subject to the conditions (if any) imposed by the Minister. (3) The Minister may, at his or her discretion, vary or revoke an exemption. (4) The grant or a variation or revocation of an exemption must be notified in the Gazette. 34—Register of licensed agents, security industry trainers and security industry training providers (1) The Commissioner must keep a register of persons licensed as agents or security industry trainers or approved as security industry training providers. (2) The Commissioner must record on the register in relation to each licensed person— (a) the class of licence held by the person; and (b) any conditions to which the licence is subject; and (c) disciplinary action taken against the person under this Act; and (d) a note of any assurance accepted under the Fair Trading Act 1987 or undertaking accepted under the Australian Consumer Law in relation to the person. (2a) If any of the following events occur in relation to a person who is licensed as an agent or security industry trainer, or is a director of a body corporate that is licensed as an agent, the Commissioner may record a note of the event on the register: (a) the person is found guilty or convicted of an offence of a class as prescribed by regulation for the purposes of section 3(2); (b) the person is suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; (c) in the case of a person whose licence is not subject to an employee condition or who is a director of a body corporate that is licensed as an agent—a body corporate is wound up for the benefit of creditors and the person was a director of the body corporate— (i) when the body corporate was being so wound up; or (ii) within the period of 6 months preceding the commencement of the winding up; (d) in the case of a person whose licence is not subject to an employee condition—the person becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; (e) the person, being a body corporate, is being wound up or is under official management or in receivership. (3) A person may inspect the register on payment of the fee fixed by regulation. 35—Commissioner and proceedings before Court (1) The Commissioner is entitled to be joined as a party to any proceedings of the Court under this Act. (2) The Commissioner may appear personally in any such proceedings or may be represented at the proceedings by counsel or a person employed in the Public Service. 36—Return of licences If a licence is suspended or cancelled under this Act, the holder of the licence must, at the direction of the Court or the Commissioner, return the licence to the Commissioner. 36AA—Taking of fingerprints (1) If fingerprints are to be taken from a person under this Act, the fingerprints must be taken by— (a) a police officer; or (b) a person, or a member of a class of persons, authorised in writing by the Commissioner for the purpose. (2) Without limiting the power of the Commissioner under this Act to impose a requirement for a person to make arrangements to have his or her fingerprints taken, the Commissioner may in imposing such a requirement specify how and when the arrangements are to be made and that arrangements may be made for the taking of fingerprints at a place outside this State. 36A—Destruction of fingerprints (1) This section applies— (a) to fingerprints taken under this Act in connection with an application if the application is refused; and (b) to fingerprints taken under this Act of a person as a director of a body corporate if the body corporate is dissolved or if the person ceases to be a director of the body corporate; and (c) to fingerprints taken under this Act in connection with a licence or approval or an application for a licence or approval if the licence or approval is cancelled or withdrawn or voluntarily surrendered. (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. 36B—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 or cancel a security agents licence or security industry trainers licence. 37—False or misleading information A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided, or record kept, under this Act. Maximum penalty: (a) if the person made the statement knowing that it was false or misleading—$10 000; (b) in any other case—$2 500. 38—Statutory declaration If a person is required to provide information to the Commissioner, the Commissioner may require the information to be verified by statutory declaration and, in that event, the person will not be taken to have provided the information as required unless it has been verified in accordance with the requirements of the Commissioner. 39—Commissioner of Police to conduct investigations and make available relevant information (1) The Commissioner of Police must, at the request of the Commissioner, investigate and report on any matter relevant to— (a) the determination of an application under this Act; or (b) a matter that might constitute proper cause for disciplinary action under this Act. (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. 40—General defence (1) It is a defence to a charge of an offence against this Act if the defendant proves that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. (2) This section does not apply in relation to a person who is charged with an offence under section 42. 41—Liability for act or default of officer, employee or agent For the purposes of this Act, an act or default of an officer, employee or agent of a person carrying on a business will be taken to be an act or default of that person unless it is proved that the officer, employee or agent acted outside the scope of his or her actual, usual and ostensible authority. 42—Offences by bodies corporate (1) If a body corporate is guilty of a prescribed offence, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the director proves that he or she could not by the exercise of due diligence have prevented the commission of the offence. (2) If a body corporate is guilty of any other offence against this Act (other than an offence against the regulations), each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that— (a) the director knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and (b) the director was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and (c) the director failed to exercise due diligence to prevent the commission of the offence. (3) Subsection (2) does not apply if the principal offence is an offence against section 18, 19, 22, 23C, 23G, 23P or 36. (3a) The regulations may make provision in relation to the criminal liability of a director of a body corporate that is guilty of an offence against the regulations. (4) In this section— prescribed offence means an offence against section 6, 12A, 13, 23, 23AAA, 23AA or 30. 43—Continuing offence (1) A person convicted of an offence against a provision of this Act in respect of a continuing act or omission— (a) is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continued of not more than one-tenth of the maximum penalty prescribed for that offence; and (b) is, if the act or omission continues after the conviction, guilty of a further offence against the provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continued after the conviction of not more than one-tenth of the maximum penalty prescribed for the offence. (2) If an offence consists of an omission to do something that is required to be done, the omission will be taken to continue for as long as the thing required to be done remains undone after the end of the period for compliance with the requirement. 44—Prosecutions (1) Proceedings for an offence against this Act must be commenced— (a) in the case of an expiable offence—within the time limits prescribed for expiable offences by the Summary Procedure Act 1921; (b) in any other case—within 2 years of the date on which the offence is alleged to have been committed or, with the authorisation of the Minister, at a later time within 5 years of that date. (2) A prosecution for an offence against this Act cannot be commenced except by— (a) the Commissioner; or (b) an authorised officer under the Fair Trading Act 1987; or (c) a person who has the consent of the Minister to commence the prosecution; or (d) a police officer. (3) In any proceedings, an apparently genuine document purporting to be a certificate of the Minister certifying authorisation of, or consent to, a prosecution for an offence against this Act will be accepted, in the absence of proof to the contrary, as proof of the authorisation or consent. 45—Evidence In any proceedings, a certificate executed by the Commissioner certifying that a person did or did not hold a specified licence on a specified date constitutes proof, in the absence of proof to the contrary, of the matters so certified. 46—Service of documents (1) Subject to this Act, a notice or document required or authorised by this Act to be given to or served on a person may— (a) be served on the person personally; or (b) be posted in an envelope addressed to the person— (i) at the person's last known address; or (ii) if the person is a licensed agent, licensed security industry trainer or approved as a security industry training provider—at the person's address for service; or (c) if the person is a licensed agent, licensed security industry trainer or approved as a security industry training provider—be left for the person at the person's address for service with someone apparently over the age of 16 years; or (d) be transmitted by fax or email to the fax number or email address provided by the person for that purpose (in which case the notice or document will be taken to have been given or served at the time of transmission). (2) The address for service of a person who is a licensed agent, licensed security industry trainer or approved as a security industry training provider is the address of which the Commissioner has been last notified in writing by the person as being the person's address for service. 47—Annual report (1) The Commissioner must, on or before 31 October in each year, submit to the Minister a report on the administration of this Act during the period of 12 months ending on the preceding 30 June. (2) The Minister must, within six sitting days after receipt of the report, cause a copy of the report to be laid before each House of Parliament. 48—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) require agents or security industry trainers to comply with codes of conduct; (b) fix various maximum rates of commission and other charges that may be charged or made by agents for specified services; (c) regulate charges, payments and reimbursements made by or to an agent in connection with specified services; (d) fix fees to be paid in respect of any matter under this Act and regulate the recovery, refund, waiver or reduction of such fees; (e) exempt (conditionally or unconditionally) classes of persons or activities from the application of this Act or specified provisions of this Act; (f) impose a penalty (not exceeding a fine of $2 500) for contravention of, or non-compliance with, a regulation. (3) Regulations under this Act— (a) may be of general application or limited application; (b) may make different provision according to the matters or circumstances to which they are expressed to apply; (c) may provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Commissioner or the Minister. (4) The regulations may operate by reference to a specified code as in force at a specified time or as in force from time to time. (5) If a code is referred to in the regulations— (a) a copy of the code must be kept available for inspection by members of the public, without charge and during normal office hours, at an office determined by the Minister; and (b) evidence of the contents of the code may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code.