Private Security Powers & Immunities: Is it time for legislative action?

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Given the rapid expansion of the tasks now being carried out on a daily basis by private security personnel in policing partnerships, one might assume that careful attention would have been paid to the legal framework within which these cooperative activities take place. Regrettably, this has not been the case. One can sympathise with parliamentarians. It would be a very difficult task for lawmakers to grant private security personnel a carte blanche range of legal powers, given the many and varied roles of private personnel, and given the multitude of activities in which they may be engaged. In addition, many private security firms are national corporations, and any general attempt to set legislated rules which transcend state and
territory boundaries would be difficult to do, let alone to implement and enforce.

The consequence of this legislative reluctance is that the legal authority, powers and immunities of private security providers are found mainly, and somewhat obscurely, in bits and pieces of the criminal law, the law of property, the law of contract and employment law. While there has been legislation passed in all Australian jurisdictions concerning the registration, licensing and training of private security personnel, all of it updated in the past decade, the main aim of this legislation is to oversee those who operate within the industry, and to check those who wish to enter it against certain ‘fit and proper person’ criteria along with minimum training standards. This legislation does not deal with powers and immunities at all. There is no legislation in Australia that permits security guards generally to wield specific powers. Indeed, two jurisdictions make it clear that no inferences regarding powers are to be drawn from security licensing legislation. Section 8 of the Security Industry Act 1997 (NSW) says that the holder of any licence can carry out the functions authorised by the licence but that ‘[a]licence does not confer on the licensee any function apart from a function authorised by the licence.’ The Security and Investigation Agents Act 1995 (SA) s 15(1) goes a little further, stating that ‘[a]licence does not confer on an agent power or authority to act in contravention of, or in disregard of, law or rights or privileges arising under or protected by law.’

This lack of legislative direction is potentially confusing for security personnel and the public alike. There is some evidence that as many as 10 per cent of security guards in the United Kingdom believe that they possess the same powers as police officers. Moreover, there are few legal precedents emerging from the courts, essentially because only about three per cent of all claims seeking compensation for negligence end up in court. The other 97 per cent are either abandoned or settled by negotiation ‘out of court’. Insurance companies prefer to settle claims out of court because it is quicker and usually cheaper for them. Hence it is difficult to find a comprehensive body of law on the subject.

In contrast, public police have coercive and intrusive powers that are delineated in legislation. These delineations reveal distinct differences between the powers of public police officers and private security personnel. For example, public police are given statutory immunity from legal suit in circumstances where their beliefs and acts are ‘reasonable.’

Private personnel are afforded no such luxury. Indeed, private security, in carrying out their duties, constantly run the risk of being sued in the torts of assault, false imprisonment, intentional infliction of mental distress, defamation, nuisance and trespass. This is not to say that police do not run these risks, but because they have immunities in place, the police are far less likely to find themselves on the losing end of a law suit brought by an aggrieved person.

Moreover, public police may act to prevent the commission of an offence before it actually happens (acting upon a suspicion). This concession is not granted to private security personnel. Police powers, duties, rights, responsibilities and immunities have been so often debated in the courts that there is now a large and continually expanding body of law on these issues. The same cannot be said for private security law.

Starting from first principles, and speaking generally, unless there is specific legislation that empowers specialised security staff to undertake certain tasks for some particular event, the law confers no powers upon security personnel beyond the powers given to the ordinary citizen. That having been said, the powers of the private citizen are considerable. The law of property, for example, grants to the owner of private property the power to require visitors to leave the premises (using reasonable force if necessary), or to subject visitors to stipulations (such as a search) prescribed and advertised by the property owner. Similar powers exist for employers over employees. Each of these powers can be delegated to agents (private security) who are entitled to wear uniforms, and even to carry a firearm if they have the correct training and carry the appropriate licence.

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