Element 1 – Identify and Comply With Legal and Procedural Requirements
Our system of law consists of a series of rules that we live by in a civilised society. The absence of this system would see society break down into anarchy. A professional security officer must have a sound understanding of the law.
Civil law involves two individuals and how they relate to each other. The intention of the court is to return the wronged person to his / her original state. This is usually done with money. This means a civil wrong – that is to say the damage suffered – must be measurable. Civil law deals with the maintenance of private claims or wrongs against an individual.
Torts (wrongs against individuals) include issues of compensation or other remedies when an individual’s rights are infringed by wrongful conduct.
A contract (legally binding promise), may be written, verbal or implied. It is much easier to enforce if the contract is written. If one of the contracted parties feels the agreement has been breached, the action to rectify the situation takes place in court. It is not a matter for the police.
In civil law, a wronged person is called a plaintiff in court. The standard of proof in a civil case is based on the balance of probabilities.
When assessing whether a negligent act has occurred, there are three key elements:
- Is a legal duty of care owed?
- Has that duty of care been breached?
- Were the damages resulting from that breach foreseeable?
Is a legal duty of care owed?
One source available to a person endeavouring to understand if a duty of care is owed, is to research previous decisions and records. These previous decisions are also referred to as precedents. Other considerations include:
- An evaluation of the legal consequences
- Physical relationship, also referred to as proximity – the time and space relationship between the parties
- Circumstantial relationships can include employer / employee
- Causal relationship. The relationship between the particular act or omission, and the loss that occurred
Has that duty of care been breached?
Each person has a duty of care to his / her neighbour. The ‘neighbour’ concept was first determined as a result of the case of: Donoghue v Stevenson (1932) AC 562. In this case a snail was found in a bottle of soft drink after it was purchased.
Lord Aitkin (the presiding judge) made a statement that has become a very strong precedent for us to follow today: “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. Neighbours are people “so closely and directly affected by my act that I ought reasonably have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.
Were the damages resulting from that breach foreseeable?
- The person seeking damages must show that the loss / damage suffered resulted from the breach of duty owed by the other party.
- One of the common tests is the ‘but for’ test. This test asks the question: “would the damage have resulted ‘but for’ the defendant’s act or omission?”
- A second test / question to assist in evaluating the loss or damage is: “whether on the balance of probabilities the defendant’s act or omission caused or materially contributed to the damage.”
After a day of drinking sparkling wine and making advances at male patrons, Rosalie Cole was thrown out of a Tweed Heads club. But not before the manager of the South Tweed Heads Rugby Club offered to call her a taxi. Ms Cole refused the taxi and walked out onto the street to be hit by a passing car. She sustained serious injuries.
She was awarded damages of $120,000 in the NSW Supreme Court when the judge ruled the club had breached its duty of care by continuing to serve her alcohol despite her intoxicated state.
A decision in the court of appeal found in favour of the club. The ruling said people need to take responsibility for their own actions. The law should not recognise a duty of care to protect persons from harm who become intoxicated following a deliberate and voluntary decision to drink to excess.
|Case example Wormald v Robertson
In the case Wormald v Robertson, the plaintiff attended a hotel where Robertson was also present.
Robertson had been misbehaving for half an hour by jumping on tables, breaking glasses and molesting other patrons. The licensee did nothing despite two complaints from patrons. Robertson continued to misbehave for another half an hour when he grabbed a female who was a friend of Wormald. Wormald said “Enough is enough, Robbo.” Robertson turned away then swung around smashing a glass beer jug in the face of Wormald.
The hotel and its owner were sued for negligence, and the court found the defendants liable because it was obvious that Robertson would become the source of injury or damage to some person in or about the hotel.
The Court of Appeal was asked to decide whether the actions of Wormald had broken the chain of causation, meaning was the damage a direct result of Robertson’s actions or did the actions of Wormald contribute to the damage or even cause the damage. The Court found that it was obvious that in the circumstances, trouble should have been anticipated. It said that Wormald’s intervention to remonstrate with Robertson over his behaviour was a factor that might reasonably and predictably have been expected of any number of patrons. The Court also held that there was no contributory negligence or volenti non fit injuria – voluntary assumption of risk.
There are numerous news reports from other countries, in particular the United States, of people or organisations being sued for negligence in circumstances that seem quite bizarre. The legal systems in Australia, New Zealand and the United Kingdom are fundamentally different to the United States, so there is little chance of similar legal actions taking place in Australia.
Never the less, security officers must be acutely aware of the potential consequences of their actions. For example, maintaining order in a public place in the course of duty is a big responsibility. A physical action that is perhaps fuelled by frustration or simply being tired could result in an injury to the other person. If the situation needs to be resolved in a court, the jury will have hours or even days to examine what took seconds to occur. Your actions prior to the incident and prior to going to court are critical. Your level of training, amount of practice, skill level and maturity will all be examined.
Reducing negligence as a security professional:
- Stay current with standards and trends in training
- Have adequate standing orders or operational orders
- Have an adequate use of force policy and standing orders or operational orders
- Conduct training in a variety of surroundings, not just a nice floor with soft mats
- Incorporate alternative applications for use of force; conflict resolution skills
- Document training
- Criminal Law
In contrast to civil law, criminal offences are considered to be offences against society. That means that the whole of our society is adversely affected by violent crime, robbery and similar. If these crimes were allowed to take place unchecked, our society would not function.
A police service is engaged by society to uphold the law and act as a deterrent to people who might take part in criminal activities. Their role includes investigating, arresting and prosecuting people accused of criminal offences. Unlike a civil law action, the role of the court in a criminal matter is to punish the offender. The potential for serious punishment, like being sent to prison, is intended to be a deterrent to others who might consider taking part in criminal activity.
In some circumstances, an action may infringe a state law (crime) and a personal right (civil). Assault is an example of where the police may prosecute the offender and the person who has been assaulted may take a civil action to seek compensation for the damage suffered.
A few years ago, Australian Olympic swimmer Nick D’Arcy violently assaulted Michael Cowley. Mr D’Arcy was prosecuted by the police and received a suspended sentence. Mr. Cowley took a civil action and was awarded damages of $380,000.
Criminal law has the potential for severe penalties (fine, imprisonment) and therefore is measured by a higher standard of proof. This standard of proof in a criminal case is beyond reasonable doubt. The onus of proof relates to who has the task of proving the case. In a criminal case, the onus is on the prosecution to prove that the accused is guilty, and in a civil case the onus rests with the plaintiff who has to prove their claim against the defendant.
Except in the case of necessity, it is an offence to administer surgical or medical treatment, or do any act which is dangerous to human life or health unless the act is done with reasonable skill and care. It is the duty of any person in charge or control of anything dangerous to the safety or health of another person, to use reasonable care and take reasonable precautions to avoid such danger: e.g. a firearm, guard dog, baton and handcuffs. Any person who unlawfully does any act, or omits to do any act which it is his duty to do, which results in bodily harm to a person, is guilty of a misdemeanour.
The main difference between civil and criminal negligence is the standard of proof required to win the case.
Just like in a normal civil case, to win in an action based on civil negligence the plaintiff has to prove the case on the balance of probability which is a lower standard of proof than in criminal negligence where the prosecution has to prove the negligence beyond reasonable doubt – this is much harder to prove, and as a result there are rarely prosecutions for criminal negligence.
Subdivision 1 Principles that apply to duties
13 Principles that apply to duties
This subdivision sets out the principles that apply to all duties that persons have under this Act.
Note: The principles will apply to duties under this part and other parts of this Act including, for example, duties relating to incident notification and consultation.
14 Duties not transferable
A duty cannot be transferred to another person.
15 Person may have more than 1 duty
A person can have more than 1 duty by virtue of being in more than 1 class of duty holder.
16 More than 1 person can have a duty
- More than 1 person can concurrently have the same duty.
- Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.
- If more than 1 person has a duty for the same matter, each person:
- Retains responsibility for the person’s duty in relation to the matter; and
- Must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.
17 Management of risks
A duty imposed on a person to ensure health and safety requires the person:
- To eliminate risks to health and safety, so far as is reasonably practicable; and
- If it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
Division 2 Primary duty of care
19 Primary duty of care
- A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of
- Workers engaged, or caused to be engaged by the person; and
- Workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking.
- A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
- Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:
- The provision and maintenance of a work environment without risks to health and safety; and
- The provision and maintenance of safe plant and structures; and
- The provision and maintenance of safe systems of work; and
- The safe use, handling and storage of plant, structures and substances; and
- The provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
- The provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
- That the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
- A worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and
- The occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available; the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.
A Magistrates Court does not have a jury. It deals with civil matters with a financial threshold of $250,000 and minor criminal matters.
It also hears ‘prima facie’ evidence for indictable criminal offences. In order for a prosecution to proceed, the police and the accused (defendant) must present a summary of their case to a magistrate. Not all the evidence is heard, but there will be a sufficient argument put forward from both parties for the magistrate to decide if there is sufficient grounds for the case to proceed to a full trial. The trial will take place in the District Court or Supreme Court, depending on the seriousness of what has taken place.
A security officer may be asked to attend Magistrates Court as a witness. The court is presided over by a judge who should be referred to as: ‘Your Honour’. In a serious criminal case, the accused is first charged in a Magistrates Court. The magistrate will determine if there is sufficient evidence to justify a trial before sending the matter to trial at a higher court. This is called a committal for trial. In the instance of a criminal case, the magistrate determines guilt or innocence and also the penalty.
Once a ‘prima facie’ case has been made, the full trial and all the evidence may be heard in the District Court. The District Court also hears and determines civil matters where the amount in dispute is over $250,000.
Appeals against a Magistrates Court decision are also heard in the District Court. The judge is a District Court judge and is referred to as ‘Your Honour’. In criminal cases, a jury decides guilt or innocence and the judge sets the penalty. In civil matters the judge usually decides without a jury.
The Trial Court and the Court of Appeal are the two divisions of Queensland’s Supreme Court. Presiding over the court is a justice of the Supreme Court. The justice is referred to as ‘Your Honour’. The Supreme Court hears serious criminal offences including murder and serious drugs offences.
The trial division of the Supreme Court must use a jury to determine guilt or innocence in criminal cases. Civil cases are usually heard by a judge without a jury. Appeals go before the Court of Appeal and are heard by three justices of the Supreme Court. All District Court and Supreme Court appeals go directly to the Court of Appeal.
Regardless of the type of evidence, the most important rule is that the evidence is relevant to the case. Complex rules relate to the admissibility of the evidence. The legal representatives conducting the case on behalf of the prosecution and the defence will enter into legal argument to have certain evidence allowed or disallowed. The judge will decide what will actually be admitted to the court.
- Direct evidence – Something directly seen by the witness first hand or an object that was actually involved in the incident.
- Circumstantial evidence – This is evidence of a fact, not actually in issue, but is relevant. This relates to the circumstances of the case.
- Oral evidence – A statement made by a witness in court is referred to as oral evidence.
- Real evidence – Material objects produced e.g. murder weapon.
- Documentary evidence – It is standard procedure for the police to take written statements from witnesses. Sometimes the witness will be summonsed to appear in court to verify his / her statement.
- Hearsay – Is usually excluded, but there are exceptions. Hearsay is usually like “John Citizen told me that the accused had confessed that he committed the crime.”
- Expert evidence – In order for a person to be considered an expert and therefore provide an expert opinion, the court will verify his / her credentials and experience. Specialist doctors or experts in use of force are examples of experts that might be called to court.
Common law rights
Certain common law rights underpin court proceedings.
Innocent until proven guilty
Even though a person is charged with an offence, he / she is presumed innocent until the prosecution has produced evidence to justify convicting the charged person.
Given that a person is presumed innocent until proven guilty, the person making the charge, usually the police, have the onus of proving that charge. If they cannot produce enough evidence to prove the case, the person cannot be convicted.
The right to remain silent is a common law right, and is not protected in any statute or in our Commonwealth Constitution. This means a witness must answer questions in court. Outside court the police have the support of statute law to obligate people to answer certain questions. It is a requirement for a person to provide their name and address to police when asked.
There is a principle of law that a person cannot be tried for the same offence twice, but this is a fairly technical area of the law where the situation can change.
Bringing an accused to court
An arrested person (the accused or defendant) is taken to court. Even when that person is allowed to reside at home, he / she ‘appears in custody’ when in the court room. Corrections officers will escort people who are in prison to and from the court.
In order to expedite court proceedings, it is normal practice for a summons to be issued to a witness. This can be a little disconcerting, but it is simply a means to make sure everyone who is required arrives on time and the courts valuable time is not wasted.
The process of deciding who will be on a jury is called empanelling. Cards showing the names, addresses and occupations of potential jurors are placed in a rotating box and then some are picked out at random. When called, each person walks to the bailiff to take the oath on the Bible or make an affirmation. At any time before the bailiff begins to recite the oath or affirmation, either the prosecution, the defence or the accused can raise an objection to a juror. If the crown prosecutor calls out ‘stand by’ or the defence calls out ‘challenge’, the person must return to the back of the court and another name will be drawn. This goes on until a full jury is formed.
Juries can be used in both criminal and civil cases. There are twelve jurors in a criminal trial and four in a civil case. Juries are seldom used in civil cases. Jury members are computer selected at random from the electoral roll and they must be aged between 18 and 70.
All twelve members of the jury must return a unanimous decision. The decision is based on the evidence presented, not the impression painted by the media or preconceived opinions.
Categories of offences
There are several classifications of offences in Australia. In some states there are both the old fashioned terms of felony and misdemeanour, and also the newer terms of indictable and summary offences. Indictable offences are generally offences tried before a judge and jury and are considered to be the more serious offences. Summary offences are less serious offences heard before a magistrate. In some cases, indictable offences can actually be tried before a magistrate rather than a committal hearing then trial by jury in a higher court. These are called “indictable offences triable summarily” e.g. theft of property (which is a serious offence) but the property is only worth a small amount of money. Most states use this classification which really refers to the method of trial.
In Queensland there are two kinds of offences:
Criminal offences are classified into three categories:
- Simple offences
Crimes and misdemeanours are indictable offences, whereas a simple offence is a summary offence meaning it can only be tried in a magistrates court. Regulatory offences are those offences contained in the Regulatory Offences Act.
Unauthorised dealing with shop goods
These offences deal with goods worth $150 or less.
It is an offence to consume goods without express or implied consent.
Changing price tags
It is an offence to change, alter, remove or deface price tags on articles.
Leaving without paying
It is an offence to leave without paying for food, drink or accommodation. It is a defence to prove on reasonable grounds that the person believed the cheque would be paid on presentation or they were authorised to use a credit card.
It is an offence to wilfully destroy or damage property of another person without consent, causing damage of $250 or less.
Police have power to arrest for the above offences.
- Any person who:
- Without lawful excuse (the proof is on them to prove lawfulness):
- Is found in any dwelling house, warehouse, or in any yard, garden, or area;
- Has in their possession any picklock key or implement of housebreaking;
- Or with intent to commit an indictable offence:
- Is found at night with their face blackened or disguised; shall be guilty of an offence.
- Without lawful excuse (the proof is on them to prove lawfulness):
- Any person who without lawful excuse (the proof is on them to prove lawfulness) together with others enters or remains in or upon any part of a building or structure, whether public or private, or any land occupied or used with such land, is guilty of an offence.
- Any person who remains in or upon any part of a building, structure or land occupied or used with such land, and has no lawful excuse for so doing (the proof is on them to prove lawfulness) shall: if they do any act or use any language which is an offence under this or any other Act which would be an offence, shall be guilty of an offence.
Any person who in any public place or near a public place uses profane, indecent or abusive language or uses any threatening, abusive or insulting words, or behaves in a riotous, violent, disorderly, indecent, offensive, threatening or insulting manner shall be guilty of an offence.
Unlawful entry of dwelling-house
- Any person who enters a dwelling house without the consent of the person in lawful occupation or, where there is not a person in lawful occupation, without the consent of the owner is guilty of an offence.
- Any person who without lawful excuse, the proof of which lawful excuse shall be upon the person, is found in a dwelling house or the yard of a dwelling house is guilty of an offence.
- Yard includes any path, garden, curtilage, courtyard, enclosure, lawn or other ground or area within the precincts of or appurtenant to or under the dwelling house in question.
Power of arrest
It is lawful for any person who finds another committing an offence against this section to arrest him without warrant.
This makes it clear that any licensed security provider has no power to enter private property; a “dwelling-house”. The section also applies to any other person.
If the licensed security guard etc. finds another person in breach of the above section, they also have power to arrest the person.
A “dwelling-house” is any building or structure (or part of it) for residence whether it is uninhabited at the time or not and includes a caravan, motel etc. (s1 Criminal Code).
The Juvenile Justice Act aims to provide a special system for administering justice for children before and during court.
- Should only be detained in custody as a last resort;
- If detained, should be held in a children’s facility;
- Should be diverted from the court system if an offence is committed unless the nature of the offence or the child’s history deem otherwise;
- Should be involved in a fair and just proceeding and held accountable and accept responsibility for their actions: s4
A child is a person who has not turned 18 years: s6
If a child has been interviewed over an indictable offence, the police officer must have a parent, legal practitioner, or government agency representing the child, a J.P., or an adult nominated by the child.
If such a person is not present, the statement cannot be used in evidence against the child even if there is a full confession: s9E
A police officer must consider whether:
- They should take no action against the child, or
- Administer a caution, rather than starting a proceeding (obtaining an arrest warrant, or arresting without warrant) against the child without such consideration: s10
Administering a caution can be done if an adult person is present and the child admits to committing the offence and consents to being cautioned, where the child receives a full explanation of the matter and may also involve an apology. This means they do not go to court: s13
There are restrictions on arrest powers for police officers. The police may arrest if it is a serious offence or an indictable offence or to prevent the continuation or repetition of the offence or to prevent the concealment, loss or destruction of evidence relating to the offence: s20
Where possible a child should not be arrested, but proceeded against by way of complaint and summons or by an attendance notice: s21
If a person arrests a child they must advise the child’s parent (or if unable to be found promptly, a departmental representative) of the whereabouts of the child: s22
Queensland has some of the widest anti-discrimination laws in the country. Discrimination covers:
- Parental status
- Breast feeding
- Political belief or activity
- Trade union activity
- Lawful sexual activity
Vicarious liability also occurs with the State legislation and the legislation covers discrimination in:
- Provision of goods and services
As in the Commonwealth legislation, there are exclusions for genuine occupational requirements. There are general exemptions for actions done for:
- Workplace health and safety
- Public health
- Sport in some circumstances
Sexual harassment is also covers and includes:
- Sexual propositions
- Suggestive comments
- Indecent exposure, etc.
It must also be shown that the actions were intended to offend, humiliate or intimidate the victim, or a reasonable person would take the action that way. Relevant circumstances include age, sex, race or impairment.
Any person who takes part in a fight in a public place, or takes part in a fight of such a nature as to alarm the public in any other place to which the public have access, commits a misdemeanour.
230 Common nuisances
Any person who:
- Without lawful justification or excuse, the proof of which lies on the person, does any act, or omits to do any act with respect to any property under the person’s control, by which act or omission danger is caused to the lives, safety, or health, of the public; or
- Without lawful justification or excuse, the proof of which lies on the person, does any act, or omits to do any act with respect to any property under the person’s control, by which act or omission danger is caused to the property or comfort of the public, or the public are obstructed in the exercise or enjoyment of any right common to all Her Majesty’s subjects, and by which injury is caused to the person of some person.
245 Definition of assault
- A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.
- In this section:
Applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
255 Duty of persons arresting
- It is the duty of a person executing any process or warrant to have it with him or her, if reasonably practicable, and to produce it if required.
- It is the duty of a person arresting another, whether with or without warrant, to give notice, if practicable, of the process or warrant under which the person is acting or of the cause of the arrest.
- A failure to fulfil either of the aforesaid duties does not of itself make the execution of the process or warrant or the arrest unlawful, but is relevant to the inquiry whether the process or warrant might not have been executed or the arrest made by reasonable means in a less forcible manner.
267 Defence of dwelling
It is lawful for a person who is in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds—
- The other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and:
- It is necessary to use that force.
- The term provocation, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under the person’s immediate care, or to whom the person stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered.
- When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.
- A lawful act is not provocation to any person for an assault.
- An act which a person does in consequence of incitement given by another person in order to induce the person to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.
- An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.
271 Self-defence against unprovoked assault
- When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
- If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.
272 Self-defence against provoked assault
- When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.
- This protection does not extend to a case in which the person using force which causes death or grievous bodily harm, first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.
273 Aiding in self-defence
In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself against an assault, it is lawful for any other person acting in good faith in the first person’s aid to use a like degree of force for the purpose of defending the first person.
335 Common assault
Any person who unlawfully assaults another is guilty of a misdemeanour, and is liable, if no greater punishment is provided, to imprisonment for 3 years.
339 Assaults occasioning bodily harm
- Any person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a crime, and is liable to imprisonment for 7 years.
- If the offender does bodily harm, and is or pretends to be armed with any dangerous or offensive weapon or instrument or is in company with 1 or more other person or persons, the offender is liable to imprisonment for 10 years.
320 Assaults occasioning grievous bodily harm
- The loss of a distinct part or an organ of the body; or
- Serious disfigurement; or
- Any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.
355 Deprivation of liberty
Any person who unlawfully confines or detains another in any place against the other person’s will, or otherwise unlawfully deprives another of the other person’s personal liberty, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.
390 Things capable of being stolen
Anything that is the property of any person is capable of being stolen if it is:
- Moveable; or:
- Capable of being made moveable, even if it is made moveable in order to steal it.
391 Definition of stealing
- A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use or to the use of any other person anything capable of being stolen, is said to steal that thing.
- A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say:
- An intent to permanently deprive the owner of the thing of it;
- An intent to permanently deprive any person who has any special property in the thing of such property;
- An intent to use the thing as a pledge or security;
- An intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
- An intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;
- In the case of money—an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.
409 Definition of robbery
Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery.
- A person who breaks any part, whether external or internal, of a dwelling or any premises, or opens, by unlocking, pulling, pushing, lifting, or any other means whatever, any door, window, shutter, cellar, flap, or other thing, intended to close or cover an opening in a dwelling or any premises, or an opening giving passage from one part of a dwelling or any premises to another, is said to break the dwelling or premises.
- A person is said to enter a dwelling or premises as soon as any part of the person’s body or any part of any instrument used by the person is within the dwelling or premises.
- A person who obtains entrance into a dwelling or premises by means of any threat or artifice used for that purpose, or by collusion with any person in the dwelling or premises, or who enters any chimney or other aperture of the dwelling or premises permanently left open for any necessary purpose, but not intended to be ordinarily used as a means of entrance, is deemed to have broken and entered the dwelling or premises.
- A building or structure and a part of a building or structure other than a dwelling; and
- A tent, caravan, or vehicle; and
- Any similar place.
- Any person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime.
Maximum penalty—14 years imprisonment.
- If the offender enters the dwelling by means of any break, he or she is liable to imprisonment for life.
- The offence is committed in the night; or
- The offender—
- Uses or threatens to use actual violence; or
- Is or pretends to be armed with a dangerous or offensive weapon, instrument or noxious substance; or
- Is in company with 1 or more persons; or
- Damages, or threatens or attempts to damage, any property; the offender is liable to imprisonment for life.
- Any person who enters or is in the dwelling of another and commits an indictable offence in the dwelling commits a crime.
Maximum penalty—imprisonment for life.
469 Wilful damage
Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and the person is liable, if no other punishment is provided, to imprisonment for 5 years.
546 Arrest without warrant generally
When an offence is such that the offender can be arrested without warrant generally:
- It is lawful for any person who is called upon to assist a police officer in the arrest of a person suspected of having committed the offence, and who knows that the person calling upon the person to assist is a police officer, to assist the officer, unless the person knows that there is no reasonable ground for the suspicion; and
- It is lawful for any person who finds another committing the offence to arrest the other person without warrant; and:
- If the offence has been actually committed—it is lawful for any person who believes on reasonable ground that another person has committed the offence to arrest that person without a warrant, whether that other person has committed the offence or not; and
- It is lawful for any person who finds another by night, under such circumstances as to afford reasonable grounds for believing that the other person is committing the offence, and who does in fact so believe, to arrest the other person without warrant.
550 Arrest during flight
It is lawful for any person to arrest without warrant any other person whom the person believes, on reasonable grounds, to have committed an offence and to be escaping from, and to be freshly pursued by, some person whom, on reasonable grounds, the person believes to have authority to arrest the other person for that offence.
The definition of arrest is the lawful deprivation of a person’s liberty.
277 Defence of premises against trespassers—removal of disorderly persons
- It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person lawfully assisting him or her or acting by his or her authority, to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land, structure, vessel, or place, or in order to remove there from a person who wrongfully remains therein, provided that he or she does not do grievous bodily harm to such person.
- It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person acting by his or her authority, to use the force that is reasonably necessary in order to remove there from any person who conducts himself or herself in a disorderly manner therein, provided that he or she does not do the person grievous bodily harm.
- In this section:
Place includes any part of an enclosure or structure, whether separated from the rest of the enclosure or structure by a partition, fence, rope, or any other means, or not.
Other relevant regulations and codes of practice include:
Security Providers Regulation 2008
Security Providers (Crowd Control Code of Practice) Regulation 2008
Security Providers (Security Firm Code of Practice) Regulation 2008
Security Providers (Security Officer – Licensed Premises Codes of Practice) 2008
Unarmed security officer
An unarmed security officer personally guards, patrols or watches another person’s property, without a guard dog or weapon.
This also includes:
- In-house security (someone who guards, patrols or watches their employer’s property)
- Loss prevention personnel
- Security gate operators
A crowd controller keeps order at a public place by:
- Screening the entry of people into a place
- Monitoring or controlling the behaviour of people in a place
- Removing people from a place
For example, a hotel security guard needs a crowd controller licence, but an usher does not.
Cash transit officer
A cash transit security officer carries cash, bullion, jewellery or valuables. Officers who carry a weapon while working must also apply to the Queensland Police Service for the appropriate weapons licence.
A bodyguard carries out close personal protective services.
Monitoring security officer
A monitoring security officer personally monitors property using an electronic monitoring device, such as a visual recording system, a radio or remote alarm system.
Dog patrol officer
A dog patrol security officer guards, patrols or watches another person’s property with a guard dog.
A private investigator is a person who:
- Obtains private information about a person without that person’s permission
- Carries out surveillance to gather information about a person without that person’s consent
- Investigates the disappearance of a missing person
You are not a private investigator if you operate for or are employed by:
- Legal practitioners
- Insurance businesses
- Insurance adjustment agencies
- Independent investigators engaged to investigate and report on grievances lodged by Queensland public service employees
You can apply for a restricted licence. This licence allows you to complete your training requirements while working under the direct supervision of a fully licensed security provider.
A restricted licence is issued for a term of six months only. After the term ends, you cannot apply for an extension. You must complete the training requirements and apply for an unrestricted licence within six months.
Direct supervision of restricted licence holders
A crowd controller supervisor; cash transit security officer supervisor; dog patrol supervisor must:
- Remain on the same premises as the restricted licensee
- Remain in the restricted licensee’s line of sight, where practical
- Be able to provide immediate assistance to restricted licensee if needed
- Give the restricted licensee detailed written instructions about the work they need to do
- Document the tasks that the licensee performs
- Document and give the restricted licensee regular progress checks
- Supervise no more than one restricted licence holders at any time
A bodyguard supervisor; monitoring security supervisor; private investigator supervisor must:
- Give the restricted licensee detailed written instructions about the work they need to do
- Document the tasks that the licensee performs
- Document and give the restricted licensee regular progress checks
All new applicants for a security provider’s licence must be fingerprinted by the Queensland Police Service. After you’ve lodged your application, you will receive a letter from us that details the process for having your fingerprints taken.
The fee is $100 and is payable at the time the application is lodged.
Every three years, as a licensed bodyguard or licensed crowd controller, you will need to successfully complete three units of competency through a nationally recognised training provider. This is known as revalidation training. Revalidation training ensures that you remain up to date with the latest industry standards and techniques.
The units of competency required to be completed every three years are:
- CPPSEC3002A Manage conflict through negotiation
- CPPSEC3013A Control persons using empty hand techniques
- HLTFA301B or HLTFA301C Apply first aid
You must seek retraining and be re-assessed in each of these units of competency by the due date. You will be advised of the required completion dates for these competencies on the notice supplied with your security licence.
These units are specifically prescribed as revalidation training, and as such, completing these courses via recognition of prior learning is not acceptable.
The Statement of Attainment provided to you by your training organisation does not include the actual result and the method through which the competency was achieved.
To ensure that this initiative of revalidation training is properly administered, we also require a copy of the record of results. When you lodge evidence of completion of the required revalidation training unit, please remember to include both the Statement of Attainment and Record of Results.
The first aid unit must be current at the time the unit is due for completion. If the first aid unit has been completed more than 12 months ago, it will also be necessary to provide evidence of completion of the CPR component, HLTCPR201A or HLTCPR201B – Perform CPR, within the last 12 months. It is the responsibility of the licensee to ensure that this CPR component remains current and up to date at all times.
Licensees who fail to lodge evidence of completion of the required units of competency prior to the completion date will be subject to disciplinary action which may result in the cancellation of the bodyguard or crowd controller function from their licence.
Fair Trading inspectors conduct random checks to ensure security providers are complying with the law. Inspectors also conduct investigations and may take enforcement action for breaches identified under the Security Providers Act 1993. Queensland police service officers can also issue on-the-spot infringement notices.
From 1 July 2012, OFT and the Office of Liquor and Gaming Regulation (OLGR) will be administering a six month Brisbane-based trial which will enable OLGR inspectors to monitor and report on certain aspects of the SPA. This trial will increase the regulatory presence and further protect Queensland consumers from harm caused by unsuitable security providers.
OLGR inspectors will identify offences while visiting licensed premises by completing a spot check form and will have all of the powers of an inspector under the Act to inspect licenses and documents. Where evidence of breaches are found, OLGR will provide a report and available evidence to OFT who will consider relevant enforcement history and take appropriate action.
If an inspector approaches you, they will produce a signed photo ID.
Security provider register
Security firms must record details of all security providers it employs or engages. They must store this register where unauthorised people cannot access it. Fair Trading inspectors and the police are authorised to inspect the register at any time. The register must contain each security provider’s:
- Name, licence number and licence expiry date
- Employment commencement and termination dates (where applicable)
Crowd controller register
Any licensed premise that engages a crowd controller must maintain a crowd controller register. The register records which crowd controllers are on duty and any incidents that occur. Crowd controllers must sign in and out of each shift. Fair Trading inspectors and the police are authorised to inspect the crowd controller register at any time. Liquor licensees must keep the register on the premises. Otherwise the security firm must keep the register. They must keep the register for seven years after the date of the last entry. The register must contain:
- The crowd controller’s full name, residential address and licence number
- The security firm’s name and address (if applicable)
- The crowd controller’s identification details (venue-issued ID number)
- The crowd controller’s shift date, and start and finish time
- The name of any unrestricted crowd controller licensees directly supervising restricted crowd controller licensees
- Details of every incident in which a person is injured
- Details of every incident in which the crowd controllers removes a person from a public place
Incident details must include:
- The incident date and time
- The location at the premises where the incident happened
- Each person involved in the incident and, if known, their name
- The incident, including whether the crowd controller removed a patron from the premises because of the incident
- Injuries sustained by people involved in the incident
- Any action that a crowd controller or staff member took in response to the incident
A crowd controller must identify themselves while working. They must:
- Enter their details in the crowd controller register if working at a licensed venue or for a security firm
- Wear the prescribed identification on their clothing at chest level
- Not wear or display a hat with a chequer board design or band, as this could be confused with the police uniform
Their identification must include:
- The word ´SECURITY´ in capital letters, at least 10 mm high and 2 mm thick
- A number unique to the controller at least 30 mm high and 4 mm thick
- Black numbers and letters on a white background
A security provider licence does not authorise you to carry any firearms, handcuffs or batons.
Applying for a licence
Refer to: www.fairtrading.qld.gov.au
For the application form, refer to: www.fairtrading.qld.gov.au/Forms/Class1_security_provider_licence_application.pdf
The application form may be competed and submitted online.
 eg. QLD s289
 eg. QLD s328