The State of National Security

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The battle between state and federal powers is a tug o’ war that needs to be resolved if national security is to improve. Central to the issue is a proposal by the industry to include security licenses under a national scheme.

Every state and territory, except Western Australia and the Australian Capital Territory, has adopted the Occupational Licensing National Law Act 2010, which has since given birth to the National Occupational Licensing Authority (NOLA). The authority’s role is to establish national licensing systems to provide consistency across Australia. Currently, NOLA is examining a national licence for occupations in sectors such as property, electrical, plumbing, gasfitting, and air-conditioning and refrigeration.

National licensing has a number of benefits for the industry, says Tim Prenzler, Professor at Griffith University and chief investigator at the Australian Research Council Centre of Excellence in Policing and Security. “People want to avoid so-called safe havens where if you have weak regulation in one place, security officers get a licence there, slip through the net, and then use recognition of prior learning or portability to use that licence somewhere else,” he explains. “Where you have inconsistent regulation you can exploit the holes in some of them.”

Governments have been trying to address these inconsistencies for 15 years, says Rick Sarre, Professor of Law and Criminal Justice at the University of South Australia. Different jurisdictions have always done their own thing, which is fine until “the Australian polity becomes one country,” he notes. “It does create some burdensome and difficult dilemmas for people who want to move through the states.”

Ultimately standardisation will beget a more effective system, says Sarre. “We want to make sure that there’s some sort of uniform, national code about training, about registered training organisations, about curriculum, and about licensing so people don’t have to go through a cumbersome, inefficient licensing regime in order to operate in this country.”

NOLA needs to proceed carefully, however. Until the occupations currently under consideration go through, the security sector won’t know how robust the new system might be.

“The problem with a national system is that if it’s not a good one, then you potentially bring down the better jurisdictions to the lowest common denominator,” says Prenzler. “As much as people like myself are in favour of a national licence, we don’t want it to be a mediocre one.”

Challenging the system
Unfortunately the process is fraught with competing agendas. Prenzler says it appears the states and territories will need to give up their sovereignty as well as lose a revenue base from licence fees—not a popular move. “They’ve always been extremely parochial on the issue of industry regulation— they’re just not willing to fit into a national model,” he remarks. “They seem to think that their system is the best and then there are scandals and they have to modify it—well, obviously it wasn’t the best.”

Another hurdle is government buy-in. NOLA has yet to include the security industry on its occupations list despite the Council of Australian Governments (COAG) issuing guidelines for the industry as far back as 2008, says Sarre. “COAG at least made an effort [but]the guidelines were only related to manguarding, they weren’t related to the electronic sectors as well. COAG has gone and created a nice platform but that should be built upon now.”

Most states adopted a number of COAG requirements, but there were many other areas considered under a national approach that were more or less ignored. Sarre says it’s time to “redouble our efforts or re-challenge COAG” to put security back on the agenda. “COAG have a lot of things they’d like to do and this is not seen as one of the more urgent ones, which makes no sense at all if you’re looking at Australia’s national security. I couldn’t think of anything more important than making the states get this particular issue right.”

Prenzler agrees that governments need to be more proactive, but believes it will be difficult to make security priority one without something to react to. “What it will take? I think the answer is more scandal. The scandals have to be big. The whole history of change in this area is that improvements have been made as a result of embarrassing revelations, bad behaviour and false security.”

On a more positive note, he insists the system can work with the right approach. “Licensing is a key tool that just needs to be applied properly. The law is good, but the regulatory strategies need work. Until you do that you can’t adequately reassure the public what the state of the industry is. It’s too easy to hide problems.”

NSW CHANGES THE REGULATORY MODEL FOR THE SECURITY INDUSTRY
The Independent Commission Against Corruption’s (ICAC) December 2009 report on the findings of Operation Columba demonstrated that more work needs to be done to ensure ongoing compliance with the regulatory regime for the NSW security industry.

The NSW Government supports ICAC’s finding that the Commissioner of Police should assume responsibility for all integrity-related functions and that compliance, inspection and review processes should be expanded and improved upon. While the ICAC’s findings and recommendations related to security industry training issues, the NSW Government considers they have broader relevance to the industry as a whole.

The additional resources required for the NSW Police Force’s Security Industry Registry’s (SIR) expanded functions are to be fully funded by increases to security industry licence fees.

Deloitte Management Review
The Government’s decisions have been informed by an independent review of the NSW Police Force’s regulation of the security industry undertaken by Deloitte between February and April 2010. Deloitte prepared an independent analysis of the capacity of the SIR to carry out the functions currently allocated to it, in addition to the expanded role proposed by ICAC.

Deloitte’s main recommendations are listed below and are supported by the NSW Government:

• Abandonment of the co-regulatory model in favour of the SIR assuming the role of principal regulatory body.

• An increase in staff for the SIR, from the current 40 approved full time positions to 73 full time positions.

• The SIR to report to the Commissioner of Police via State Crime Command (an operational policing command).

• Introduction of a fully industry-funded funding model to pay for the proposed enhancements to the SIR.

Increase to Licence Fees
The Deloitte review estimated that the additional amount required to pay for the expanded functions of the Registry will be $4.7m annually. The breakdown of how these costs should be levied on the security industry is to be determined through consultation with industry.

Master licensees may choose to minimise the impact of increases to their licence fees by either negotiating reductions in their industry association fees, or by choosing to no longer be members of associations (membership will no longer be mandatory).

Legislative & Regulatory Change
Legislation will be introduced to the NSW Parliament to:
• Make sure all powers provided for under the Security Industry Act 1997 that are necessary for the effective conduct of compliance auditing, may be exercised by civilian employees of the NSW Police Force.

• Remove the industry monitoring role of the Security Industry Council and instead focus on the Council’s role as an advisory body to the Minister for Police.

Changes will also be made to the Security Industry Regulation 2007 to:
• Remove the current mandatory requirement placed on security industry Master licensees to retain financial membership of one of ten approved industry associations.

• Specify the increases to licence fees to fund the expanded functions of the SIR.

Expanded Functions
The additional 33 positions in the SIR will deliver the new functions of compliance assessments, audits and investigations. In addition to its current functions of licence processing and adjudication, the SIR will have a shift in focus to full industry regulation, ensuring legislative compliance and referring matters to operational police for investigation as required.

The SIR will also undertake a lead role in communicating with industry to educate members and to communicate industry suggestions and concerns back to the NSW Police Force and the NSW Government more generally.

The SIR’s move from NSW Police Force Corporate Services to the State Crime Command allows for ongoing close ties with operational police who are investigating serious crime. This move, combined with the new name of Security Licensing & Enforcement Directorate (SLED), reflects the expanded regulatory and compliance functions and the adoption of a more operational role.

EXERTS OF THE RESPONSE BY THE AUSTRALIAN SECURITY INDUSTRY ASSOCIATION LTD (ASIAL)
ASIAL opposes the government’s decision to end the co-regulatory partnership and impose an additional $4.7 million per year in licensing fees on the industry. ASIAL has long called for changes to the co-regulatory partnership to ensure greater accountability and performance of Approved Security Associations. Unfortunately, these calls were ignored.

Rather than disengaging with industry, there is a compelling case for greater industry engagement in framing compliance and enforcement approach to address issues such as rates of pay, sham contracting and phoenixing. This was highlighted in Fair Work Australia’s report on the Security Industry (April 2010).

ASIAL has repeatedly called for greater enforcement by the Regulator and welcomes the additional resources provided to the SIR. However, ASIAL believes that the rationale behind the government’s decision that industry should bear the full cost of its new measures is fundamentally flawed…

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