Probity requirements for security guards under Private Security Act 2004

Failing to meet the probity requirements required under Private Security Act 2004 (Vic) could jeopardise a security guard’s continued employment within the industry.

The private security industry is a heavily regulated one.  In Victoria, the Licensing and Regulation Division of Victoria Police is the responsible regulating body and the governing legislation is the Private Security Act 2004 (Vic) (The Act) and associated regulations.

All aspiring applicants, and existing license holders are subject to probity requirements under the Act.  The term ‘probity’ refers to matters relating to character (and might include, a person’s capacity for honesty, their moral principles, their standing in the community, and their integrity) and is a similar concept to another term discussed in this article ‘fit and proper person’.

A finding of guilt for serious criminal offending will inevitably disqualify an applicant for a license, as it will an existing license holder.

Under the Act, a series of ‘disqualifying offences’, create a classification of a ‘prohibited person’.  A prohibited person can’t apply for a private security license until they have satisfied the necessary statutory criteria (refer to definition of ‘prohibited person’ under section 13 of the Act).

Grounds that may cause a Notice from LRD advising of potential refusal of application for a security license

Prohibited person and disqualifying offence

Apart from failing to comply with important provisions of the Act, under section 25 of the Act, an applicant for a private security license (individual operator) will face certain difficulty obtaining a their license if any of the following apply:

• They are a prohibited person under the Act;
• They are not a fit and proper person
• They have been charged with a disqualifying offence.

A ‘disqualifying offence’ under the Act is defined (under Section 13) and without replicating what is a lengthy provision, the categories of offences broadly speaking fall into the following:

1. Offences against the person (assaults)
2. Property offences
3. Dishonesty offences
4. Drug offences (traffick drug of dependence, cultivate commercial quantity of narcotic plants)
5. Weapon offences

Often many of the offences listed above fall into a serious offence category, known in the criminal law as indictable offences.  Although an assault for the purposes of Section 13(c) would encompass a summary assault (a less serious classification of criminality) under the Summary Offences Act 1966 (Vic).

The disqualifying offences under section 13 trigger a ‘prohibited person’ status under the Act, however by operation of Subsection (3) a person, may depending upon the outcome of their particular case avoid a ‘prohibited person’ status.

Section 13 declares that a person who was otherwise charged with some disqualifying offences (not trafficking a drug of dependence, and not cultivating a commercial quantity of narcotic plants) would not be a prohibited person if their court outcome was of a relatively minor nature:

1. no penalty was imposed; or
2. the penalty imposed was a fine of less than the equivalent of 5 penalty units; or
3. a penalty other than a fine or a custodial penaltywas imposed.

Where an applicant is not a prohibited person, and they have been charged, or found guilty of a previous offence (that is not a disqualifying offence), they may be called upon to show that they are a fit and proper person to obtain a license, or to retain their existing license.

What is a ‘fit and proper person’?

The term is not defined under the Act.  Some assistance can be derived through information published on the Victorian Licensing and Regulation Division of Victoria Police through their website (www.police.vic.gov.au).

The concept of ‘fit and proper’ is a broad one that takes account of a number of things including the qualities and characteristics of the applicant, the activities they are seeking to perform and the ends to be served by those activities.

Private security licence holders hold a high level of responsibility as they perform activities with the aim of ensuring public safety and peace. It is important to ensure that only suitable persons are licensed to perform such activities.

When assessing whether an applicant is fit and proper to hold a private security licence, factors assessed include:

• physical and mental health;
• criminal history;
• other contacts with police, and
• any other matters that may be relevant to the applicant’s character

and their suitability to be licensed.

The concept of a ‘fit and proper’ person has also been judicially considered.

In ABT v Bond [1990] HCA 33 at para 56, Justices Toohey and Gaudron remarked that the expression ‘fit and proper person’:

“[It] takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.  The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities.  However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur”.

At paragraph 63, their Honours observed that:

“The question whether a person is fit and proper is one of value judgment.  In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker.  So too is the weight if any, to be given to matters favouring the person whose fitness and proprietary are under consideration”

It was also noted in Siguenza v Secretary of Department of Infrastructure (unreported [2003] VSC 46, at para 34, per Justice Balmford:

“It is clear from the authorities that the test of a ‘fit and proper person’ must depend, in each case, on the purpose of the legislation under which the test is being applied”

In the context of the present discussion, and ‘fit and proper’ person requirement, the purposes of the Act are set out under section 1, and it follows that any submission that advances that a person meets the fit and proper person probity requirement, must have regard to section 1(a)-(b), which relevantly provides:

1. to provide for the licensing and registration of certain participants in the private security industry; and
2. to otherwise regulate the private security industry for the purposes of ensuring public safety and peace; and 

Notice to the license holder that there are grounds for finding that the probity requirements under the Act have not been met

A security guard who becomes a ‘prohibited person’ as a result of a conviction for a disqualifying offence (as a result of the application of section 13) would under the Act have their license immediately cancelled the LRD of Vic Pol learning of that event (section 47).

In circumstances where a person is charged but not yet convicted of a disqualifying offence, or charged with any other non-disqualifying offence (indictable or summary) a notice from the LRD of Vic Pol advising may be sent advising the license holder, that a disciplinary inquiry into the matter will occur (by operation of Sections 50 and 51 of the Act).

This notice would specify the relevant grounds and invite the individual to make submissions in writing or oral in response to the notice (Section 52).

Submissions in response to a Notice issued under Section 50 of the Act to suspend a private security individual operator licence pending a disciplinary inquiry

The author has assisted several clients to respond to notices issued pursuant Section 50 of the Act, and whilst each case must be considered in light of the particular grounds alleged in the notice, it is generally helpful to provide the following when submitting written submissions:

1. Covering letter to LRD of Vic Pol formally responding to the Notice, and setting out in a short summary, why the applicant is a fit and proper person; why it is in the public interest that the relevant security license be retained.
2. Statutory declaration from Applicant. This document should set out in more detail, matters personal to the applicant, and also address specific grounds identified in the Notice from Vic Pol LRD.   As a general guide,  it may be necessary to refer to any number of the following:
   • The context of the index allegation alleged by LRD of Vic Pol to amount to discreditable conduct.   Any obvious factors in mitigation need to be amplified.
   • Good employment history of employment as a security guard, an absence of disciplinary complaints; compliance with all necessary training requirements.
   • Good character, as demonstrated through community involvement, charity work (if applicable)
3. Character references. Referees should state the purpose for which their reference has been sought.   Where possible the referee should comment on matters pertaining to employment as a security guard, whether he/she has a good record of employment, and any other matter that objectively establish their good character.

Section 56 of the Act requires the Chief Commissioner to write to the holder of a licence as to their decision.  Without replicating the section in full, some of the actions the Chief Commissioner may take, upon being satisfied that a relevant ground has been made out include:

1. take no further action;
2. reprimand the holder of the licence;
3. impose or vary a condition on the licence;
4. suspension of the license for a set period;
5. cancellation of the license

As an effective submission can be the difference between an affected security guard keeping their employment or losing it. It follows that it is obviously very important to obtain prompt legal advice, and assistance in responding to Notices sent by Vic Pol LRD pursuant to the Act.
 
 
 
Date Published: 8 November 2017