Australia’s path to security industry regulation
Australia has had legislation to regulate the security industry since the 1980’s, and was introduced to establish minimum qualification and character requirements (including criminal history checks) and to try to prevent infiltration of the sector by organised crime (see Prenzler and Sarre 2012).
This is State or Territory-based legislation: there is no regulation of the private security industry by the Commonwealth, and arrangements involving Australian Government security clearances and the Defence Industrial Security Program are completely separate. State police predominately manage security licencing in Australia, however there are exceptions where this role is performed by a state’s Office of Fair Trading. Legislation in each state or territory contains provisions for mutual recognition of licences held in other Australian jurisdictions, as well as limited provisions for temporarily working in other states.
Current legislation in NSW
In New South Wales (NSW), Australia’s most populous state, the NSW Police currently manages licencing for Private Investigators and Security Consultant’s under two pieces of legislation as at the time of writing:
- Security Industry Act 1997 (NSW)
- Commercial Agents & Private Inquiry Agents Act 2004 (NSW)
The legislation establishes licencing requirements for individuals (known as ‘operator licences’) and employers (known as ‘master licences’). In 2016, the Security Industry Amendment (Private Investigators) Act 2016 No 40 (not commenced) was passed to establish the legal basis for these changes, however there was no date when this was to take effect until October 2021, creating an element of confusion for licencees.
Effective 1 July 2022, licencing of private investigators will be incorporated into the Security Industry Act. In practice, this means professionals who offer both private investigator and security consulting services go from requiring two master and operator licences to one of each category. The addition of Class 2E to an operator’s security licence authorises the licensee to act as a private investigator or act in a similar capacity. These improvements to regulations, warmly welcomed by me as a holder of both licences, will streamline compliance.
Individual (operator) licencing in Australia
In Australia, it is common to find individuals working in roles that provide services which involve private investigation and security consulting within the same engagement. An example might be where an investigation is performed into theft, which also results in advice on how an organisation can improve its internal controls to prevent theft in the future.
Cybersecurity professionals are not explictly included or excluded from the need for operator licencing in Australia, which means some people are licenced and others are not. In my view, licencing of cybersecurity professionals is overdue, this gap creates confusion and inconsistency. It is reasonably safe to assume that some unlicenced activity is being undertaken in Australian industry.
The scope of licenced security consulting and private investigation services in NSW are as follows:
| Private Investigator | private investigator means a person who is employed or engaged for the purposes of either or both of the following:(a) the investigation of persons, being any activity carried out by a person on behalf of a second person (not being his or her employer) that involves finding a third person or investigating a third person’s business or personal affairs, (b) the surveillance of persons, being any activity carried out by a person on behalf of a second person (not being his or her employer) that involves the surveillance of a third person. |
| Security Consultant | Security Consultant (licence class 2A) —authorises the licensee: (i) to sell security methods or principles, and (ii) to act as a consultant by identifying and analysing security risks and providing solutions and management strategies to minimise those security risks, |
To be eligible for the above licence, individuals must hold the relevant qualifications, as well as satisfy relevant employment experience and character requirements (including undergoing fingerprinting by police).
Performing the above services without a licence is a criminal offence in all Australian states and territories. The maximum penalty for “carrying on a security activity” unlicenced in NSW is a fine of 500 penalty units ($110 fine per penalty unit, so $55,000) or imprisonment for 2 years, or both (refer legislation).
Employer (master) licencing in Australia
Holding a master licence means organisations can provide licensed security operatives to carry out security activities in NSW (i.e. including security consulting services and, as of 1 July 2022, private investigation services). Master licence holders must ensure that only appropriately licenced employees provide security services. There are three categories of master licence holder under NSW law:
- Individual – individuals registered as a sole trader (or partnership) who wish to either carry out security activities in a self-employed capacity with a Class 1 or Class 2 security operative licence, or provide security operatives under an ABN
- Corporation – ASIC-registered corporations, excluding trusts and partnerships, that wish to provide security operatives to carry out security activities
- Government Agency – government agencies that wish to provide security operatives to carry out security activities.
A master licence holder is subject to a number of prerequisites as well as character checks of directors and ‘close associates’. As with individual licences, there are penalties for providing unlicenced security services. These are currently 1,000 penalty units in the case of a corporation ($110,000) or in the case of an individual, 500 penalty units ($55,000) or imprisonment for 2 years, or both.
How to check an individual or business is licenced in Australia?
The regulator for security industry and private investigator licencing in each state or territory manages their own register of licencees. In NSW, this register can be queried by members of the public here: Service NSW.
As with any industry, there are a range of practitioners from those offering highly professional, highly skilled services through to those with substantially less experience. Prospective buyers of these services should perform appropriate due diligence.
Further reading:
- New South Wales Police (2021). Fair Trading seeks feedback on proposed Commercial Agents rules, SLED News, 28 October 2021, www.police.nsw.gov.au
- New South Wales Police Security Licencing and Enforcement Directorate
- Prenzler, T. and Sarre, R. (2012). The Evolution of Security Industry Regulation in Australia: A Critique. International Journal for Crime, Justice and Social Democracy, 1, 1, 38-51.
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