Gated And Guarded Communities Bill 2009

A Draft of the GATED AND GUARDED COMMUNITIES BILL/Act 2009 prepared by Mr Mah Weng Kwai (Past President LAWASIA, Malaysian Bar Council, TRA), is now ready for viewing (refer below) and discussion . Members of our "Tropicana community", members of the public, affected and interested parties especially lawyers and those from the Real Estate Industry are invited to email their comments and suggestions to: [email protected] & [email protected] , so that we can fine tune the details of the Bill. When we are ready, we shall forward the finalized bill to the appropriate authorities for further action. Below is the Summary of Contents for the bill followed by the proposed Act . GATED AND GUARDED COMMUNITIES BILL 2009 ARRANGEMENT OF CLAUSES PART I PRELIMINARY Clause 1. Short title, application and commencement 2. Interpretation PART II APPLICATION FOR APPROVAL OF GATED AND GUARDED COMMUNITY 3. Application for new development 4. Application for existing development PART III SECURITY SERVICES AND FACILITIES 5. Law governing security guards and security companies 6. Uniform, badge and emblem 7. Authorization of the security guards 8. Use of guard dogs 9. Possess, carry or use arms or ammunition 10. Arms not to be discharged except at shooting range, etc. 11. Causing injury with an arm without lawful excuse 12. Powers of arrest, stopping and detention. 13. Power to stop and search for arms, etc. 14. Persons arrested to be taken to police station. 15. Power to stop vehicles. 16. Power to require the production of national registration identity card within gated and guarded community area 17. Power to require the production and inspection of driving licence 18. Special powers. 19. Barriers, boom gates, etc. 20. Guardhouses 21. Fencing PART IV POWERS AND DUTIES OF THE PUBLIC AUTHORITIES 22. Control of public place, etc. within the residential community area PART V MISCELLANEOUS 23. By-laws 24. Publication of by-law, rule or regulation in the Gazette constitute notice. 25. General penalties. A BILL intituled An Act to allow for the installation of barriers and/or boom gates at the entry and exit point of a residential community area and the appointment of security guards to operate the barriers and/or boom gates and to patrol the residential community area. [ ] BE IT ENACTED by the Seri Paduka Baginda Yang Di Pertuan Agong with the advice and consent of Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows: PART I PRELIMINARY

Short title, application and commencement 1. (1) This Act may be cited as the Gated and Guarded Communities Act 2009. (2) This Act shall apply to West Malaysia only. (3) This Act shall come into operation on a date to be appointed by the Yang Di Pertuan Agong by notification in the Gazette. Interpretation 2. (1) In this Act, unless the context otherwise requires:- "ammunition" means ammunition (including blank ammunition) for any arm as hereinafter defined, and includes grenades, bombs and other like missiles, whether capable of use with arms or not, and any ammunition containing, or designed or adapted to contain any noxious liquid, gas or other thing; "arm" means any lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged, or which can be adapted for the discharge of any such shot, bullet or other missile, and any weapon of whatever description designed or adapted or which can be adapted for the discharge of any noxious liquid, gas or other thing, and includes an air gun, air pistol, automatic gun, pistol and any component parts of any such weapon, and any accessory to those weapons designed or adapted to diminish the noise or flash caused by firing the weapon; "arms licence" means a licence granted under section 4 of the Arms Act 1960; "arms permit" means a permit to carry and use arms and ammunition granted under section 4 of the Arms Act 1960; "authorized officer" means:- (a) any police officer; (b) any person holding a commission in any of the armed forces or in any local force constituted under any written law; (c) any member of the armed forces or of any local force constituted under any written law performing the duties of a guard or sentry in any protected place or protected area in accordance with orders issued by a person holding a commission in any of the armed forces or of any local force constituted under any written law; "Chief Police Officer" includes a Commissioner of Police vested with the control of the Royal Malaysia Police in respect of any area or State; "community" means a neighborhood, a society or group of people with similar rights or interests; "developer" means any person or body of persons (by whatever name described), who develops any land for the purpose of accommodation and includes the executors, administrators and successors in title or permitted assigns of such person or body of persons; "gated and guarded community" means a development area having a cluster of houses that are surrounded by a wall or fence with the entry to or exit from the area controlled by certain measures or restrictions such as guard houses or boom gates or chains which includes 24 hours security, guard patrols, central monitoring systems and close circuit televisions; "local authority" includes any person or body of persons appointed under any written law to exercise and perform the powers and duties which are conferred and imposed on a local authority under any written law; "residents' association" means an association formed by groups of people from a specific locality who come together to address issues within their local area and act as a voice for their local community; "residential community area" means a gated and guarded community development declared to be such under this Act. PART II APPLICATION FOR APPROVAL OF GATED AND GUARDED COMMUNITY Application for new development 3. (1) An application for approval of a new gated and guarded community development shall be made by the developer to the local authority.

(2) The developer shall inform buyers of the conditions of a gated and guarded community development through provisions in the sale and purchase agreements especially on matters relate to the cost of maintaining the security services. (3) The approval for a new gated and guarded community development shall be allowed for residential community area only. Application for existing development 4. (1) An application for approval of an existing gated and guarded community development shall be made by the registered residents' association only to the local authority. (2) Consent of at least eighty five per centum of the registered owners of the existing gated and guarded community development must first be obtained before an application for the approval of an existing gated and guarded community development is made. (3) The approval for an existing gated and guarded community development shall be allowed for residential community area only. PART III SECURITY SERVICES AND FACILITIES Law governing security guards and security companies 5. Unless otherwise provided, the security guards and security companies shall be governed and regulated by the provisions under the Private Agency Act 1971. Uniform, badge and emblem 6. Subject to any law relating to uniform, badge or emblem, any uniform, badge or emblem intended to be worn by the security guards shall first be approved by the local authority. Authorization of the security guards 7. The Inspector General of Police, any Chief Police Officer and any police officer of or above the rank of Assistant Superintendent empowered in that behalf by the Inspector General of Police or a Chief Police Officer, may upon any application by the security companies authorize any person performing the duties of a guard in a gated and guarded community to exercise the powers of an authorized officer. Use of guard dogs 8. (1) A security guard shall not use a guard dog either on static or patrol duty at any place in the gated and guarded community unless the security guard is capable of controlling the dog and the dog is under the security guard's control at all times while it is secured so that it is not at liberty to go freely. (2) The security guard of a guard dog shall keep the dog under control at all times while it is being used as a guard dog at any place in the gated and guarded community except: (a) while another security guard has control over the dog; or (b) while the dog is secured so that it is not at liberty to go freely. (3) A residents' association shall not use or permit the use of a guard dog at any place in the gated and guarded community unless a notice containing a warning that a guard dog is present is clearly exhibited at each entrance to the gated and guarded community. Possess, carry or use arms or ammunition 9. (1) Subject to this Act and any regulations made hereunder, no security guard shall have in his possession, custody or control any

arms or ammunition unless he is the holder of an arms licence in that behalf granted to him under any written law. (2) Notwithstanding subsection (1), a security guard may carry and use arms or ammunition in accordance with the terms of a valid permit granted to him under any written law: Provided that there is in force an arms licence in respect of those arms and ammunition granted to some other person or security company. Arms not to be discharged except at shooting range, etc. 10. (1) No security guard shall discharge an arm: (a) except at a place permitted in writing to be used as a shooting range by the Chief Police Officer of the State where the place is situated; (b) except for the protection of life or property in the community; (c) unless he is acting within the course of his duty in accordance with this Act or any other written law. Causing injury with an arm without lawful excuse 11. Any security guard who discharges an arm and injures any person thereby, whether fatally or not, shall, unless he satisfies the court that he had some lawful justification or excuse for causing such injury or that he took all reasonable precautions to ensure that no person was injured by such discharge, on conviction, be liable to imprisonment for a term not exceeding two years, or to a fine not exceeding five thousand ringgit, or to both. Powers of arrest, stopping and detention. 12. (1) A security guard may arrest without a warrant(a) any person who has committed or is suspected of having committed a seizable and non-bailable offence for the purposes of the law for the time being in force relating to criminal procedure.; (b) any person, not being the driver of a motor vehicle, who within his view commits an offence against this Act other than an offence against any of the sections mentioned in paragraph (a): Provided that such person shall not be arrested if he satisfies such security guard as to his name and residence in Malaysia, and that he does not intend to abscond; (c) any person in charge of or driving a motor vehicle who has committed or is suspected of having committed an offence against this Act other than an offence against any of the sections mentioned in paragraph (a): Provided that such person shall not be arrested if- (i) on the demand of such security guard he produces his driving licence so as to enable the security guard to ascertain the name and address of the holder of the licence, the date of issue and the authority by which it was issued; or (ii) not being the driver of a motor vehicle used for the carriage of passengers for hire or reward or for the carriage of goods, he gives the security guard his name and a place of residence within Malaysia, Unless such security guard has reason to suspect that the name or address so ascertained or given

is false. (2) A security guard may require any person who appears to him to be or to have been a passenger in the motor vehicle in relation to which such security guard is exercising any of the powers conferred on him by this Act to give him his name and address; and if such person refuses to give such name and address he may be arrested by such security guard without a warrant in order that his name and address may be ascertained. (3) A security guard may detain any bicycle or tricycle in respect of which an offence has been committed within his view. Power to stop and search for arms, etc. 13. (1) Notwithstanding any other written laws, it shall be lawful for any security guard to stop and to search for arms, ammunition or dangerous weapon any person whom he may find in any place in the community at any hour of the day or night who acts in a suspicious manner or whom he may suspect of having any arms, ammunition or dangerous weapon in his possession. (2) No woman shall be searched under this section except by a woman. Persons arrested to be taken to police station. 14. Every person arrested by virtue of any power given by this Part shall, together with any article as to which any offence may have been committed or attempted to be committed, be taken to a police station and conveyed, as soon as conveniently may be, before a Sessions Court or the Court of a Magistrate to be dealt with according to law. Power to stop vehicles. 15. Any person driving a motor vehicle on a road within the gated and guarded community shall stop the motor vehicle on being so required by a security guard in uniform, and if he fails so to do he shall be guilty of an offence. Power to require the production of national registration identity card within gated and guarded community area. 16. (1) Notwithstanding any other written laws, any security guard may require any person entering or found within the residential community area to produce his identity card or his Government multi-purpose card, as the case may be, and upon being satisfied with the identity of that person, shall return the identity card or the Government multi-purpose card to him, and thereafter issue a temporary identity pass or permit for so long as such person remains within such gated and guarded community area. (2) Notwithstanding subsection (1), persons under Regulation 27 of the National Registration Regulations 1990 are exempted from producing his identity card for inspection. (3) If upon inspection of an identity card carried out under subsection (1), any security guard referred to in subsection (1),--- (a) finds that the identity card is false--- (i) he shall arrest the person committing the offence without warrant and shall without unnecessary delay hand over to the nearest police officer, or in the absence of a police officer, take such person to the nearest police station; and (ii) seize and immediately surrender the identity card to the nearest registration officer; or (b) has reasonable cause to suspect that the particulars in the identity card to be false, he shall detain and immediately surrender that identity card to the nearest registration office for investigation.

Power to require the production and inspection of driving licence 17. Notwithstanding any other written laws, any security guard may require any person in charge of a motor vehicle entering or found on a road within the gated and guarded community area to produce his driving licence, and upon being satisfied with the identity of that person, shall return the driving licence and thereafter issue a temporary identity pass or permit for so long as such person remains within such gated and guarded community area. Provided that no person shall be convicted of an offence against this section by reason of his failure to produce his driving licence which is incorporated in a multipurpose electronic card or device due to its retention by any person authorised to retain it under any written law. Special powers. 18. Any person who attempts to enter or who is in the gated and guarded community area and who fails to stop after being challenged three times by a security guard so to do may be arrested by force, which force may if necessary to effect the arrest extend to the voluntary causing of hurt. Barriers, boom gates, etc. 19. (1) Notwithstanding any other written laws, barriers and boom gates shall be allowed to be installed in the gated and guarded community area at any place which is deemed fit. (2) The operation time for the barriers and boom gates shall be for 24 hours per day. (3) Notwithstanding subsection (2), a local authority by its officers, employees, agents or contractors shall be allowed to enter the gated and guarded community area at any time upon notification to the management of the residential community area. Guardhouses 20. (1) Notwithstanding any other written laws, guard houses shall be allowed to be constructed in the gated and guarded community area either on a road shoulder or any other place which is fit for the purpose and which does not obstruct traffic. (2) The location of guard houses shall be included in the plan layout of the development and shall be submitted to the local authority for approval. (3) The size of a guard house shall not be more than six feet by eight feet or any other size deemed fit by the local authority. Fencing 21. (1) Notwithstanding any other written laws, perimeter fencing or wall shall be allowed to be constructed surrounding the gated and guarded community area. (2) The location of the perimeter fencing or wall shall be included in the plan layout of the development and shall be submitted to the local authority for approval. (3) The size of the perimeter fencing or wall shall be in accordance of the size approved or which has been deemed fit by the local authority. PART IV POWERS AND DUTIES OF LOCAL AUTHORITIES Control of public place, etc. within the residential community area 22. A local authority shall have the general control and care of all places within the residential community area which have been or shall be at any time set apart and vested in the local authority for the use of the public or to which the public shall at any time have or have acquired a common right provided under this Act and any written law.

PART V MISCELLANEOUS By-Laws 23. (1) In addition to the powers of making by-laws expressly or impliedly conferred upon it by any other provisions of this Act every local authority may from time to time make, amend and revoke by-laws in respect of all such matters as are necessary or desirable for the maintenance of the health, safety and well-being of the residents or for the good order and government of the local authority area within the communities and in particular in respect of all or any of the following purposes - (a) to regulate the repairing cleaning, watering and lighting of streets, roads, canals and bridges; (b) to regulate, license, restrict, prevent or remove the exhibition of advertisements; (c) to regulate the planting, preservation and removal of trees, flowers and shrubs in public places; (d) to provide for the protection from damage or interference of any local authority works or property situated or being in, under or over any public or private place within the local authority area; (e) to provide for the establishment, regulation and management of any public parks, gardens, esplanades, recreation grounds, playing fields, children's playgrounds, open spaces, holiday sites, swimming pools, stadia, aquaria, gymnasia, community centres and refreshment rooms;; (f) to provide for the offences under this Act and any bylaws which may be compounded by the local authority, the persons who may compound, the limit of the sum of money to be collected by such local authority for compounding such offences and the procedure and forms to be complied with in compounding; and (g) in so far as they do not fall within any of the preceding paragraphs, to provide for all procedural and other matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the provisions of this Act. Publication of by-law, rule or regulation in the Gazette constitute notice. 24. (1) The publication in the Gazette of any by-law, rule or regulation shall constitute sufficient notice of the by-law, rule or regulation and of the due confirmation by the State Authority of the same. General penalties. 25. (1) Any person guilty of an offence under this Act or any by-laws made hereunder for which no penalty is expressly provided shall be liable on conviction to a fine not exceeding five hundred ringgit and shall also be liable to a further fine not exceeding fifty ringgit for every day that the offence is continued after conviction.