Non-police doing police-type work operate in a perilously grey area of law

A violent scuffle at a Sydney hospital this month left a police officer with a gunshot wound to his upper leg and a security guard with a gunshot wound to his calf.

Union secretary Gerard Hayes decried the lack of legal power given to hospital security personnel to restrain and detain people who threaten staff:

Consistently we see injuries … to nurses, to doctors, to health workers, to visitors, and we have been calling on the government for some time to have a summit to deal with this.

Hayes raises an important concern. For the most part, the legal status of private security staff is decidedly uncertain.

Given the rapid expansion of the daily tasks that private security personnel around Australia carry out – searching bags, detaining suspected shoplifters, confiscating property, engaging in covert surveillance and managing crowd control – one might assume careful attention has been paid to the legal framework within which they operate.

Regrettably, this has not been the case.

What laws do exist?

Lawmakers would face a difficult task granting a range of legal powers to private security personnel. This is because of the multitude of activities they engage in, the varieties of licences available and the variable quality of some training outfits.

Also, many private security firms operate nationally. Any attempt to set uniform legislated rules that transcend state and territory boundaries would be difficult.

The consequence of this reluctance is that the legal 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. All these laws have developed over the years to apply not to those doing police-type work but to private citizens, landlords and employers.

All Australian jurisdictions have legislation concerning the licensing and training of private security personnel. All of it has been updated in the past decade. But 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. It does not deal with powers and immunities at all.

Australian parliaments have taken some notable initiatives to grant coercive powers to certain quasi-governmental security operatives. Examples include Protective Security Officers in South Australia, Sydney Harbour Foreshore Authority Rangers in NSW, a Protective Security Service in Queensland and public transport “transit officers” in most capital cities.

But for the tens of thousands of other private security personnel who don a uniform each day the law is not so certain. Their powers, immunities and accountabilities remain piecemeal. The Council of Australian Governments expressed interest in reform eight years ago, but the “we need a national approach” seed fell on barren soil.

What needs to be done?

Private security personnel are now in policing partnerships and joint operations with their more expensive cousins (state and territory police, and the Australian Federal Police and its Australian Protective Service). However, the powers of the different security “arms” differ markedly.

So Australia’s parliaments need to act. But how?

There is one view that says that doing nothing and leaving the law ambiguous encourages fewer lawsuits against private security. This forces those aggrieved to negotiate more and litigate less. What this means, though, is there is little guidance about when security personnel can safely act upon their suspicions, use appropriate force, or rely upon legal immunity in the same way as public police.

Another view is that parliaments should at least legislate to protect security personnel who can demonstrate they were engaging in a bona fide act of crime prevention when a claimed injury occurs.

The idea of a person being protected from legal action when exercising good faith is not new. All states and territories have legislation that protects “good Samaritans” who act to help others in a crisis. A “reasonable suspicion and good faith immunity” could easily be installed into security legislation, applying to people who engage in security functions and who have a specified level of training.

This would encourage security officers not only to excel in their studies but also to react more decisively when protecting the public.

It is hard to say what specific action of the NSW parliament would have lessened the risk of the injuries that occurred at that Sydney hospital. What we can safely say is that we need to reinforce the importance of high levels of training and accountability for private security personnel, and to enhance policing and private security co-operation generally.

A little bit of legal guidance to those ends would not go astray either.