21 July, 2000 Speech Notes

Minister Of Commerce Paul Swain

New Zealand Security Association Inc (Nzsa) Annual Conference

Thank you for the opportunity to speak to you today in my role as Associate Minister of Justice. I want to make a couple of brief points about the industry before I speak about the issue I am sure you want to hear about - the 1974 Private Investigators and Security Guards Act.

I want to first congratulate your Association for the work it is doing in attempting to improve the public profile of this industry. You will be aware that the public, who are more and more making use of your services, run hot and cold on the standards within the industry. This of course is exacerbated by the fact that some of the hotheads who earn the security game bad press are often not even licensed members of the industry anyway.

There is still some way to go in improving that public profile. But I was impressed to hear from your Executive Director Rod Cantell when we met the other day, with how seriously he is taking this issue and the things you are doing internally to raise the standard.

Of course a lot of it comes back to the antiquated piece of law governing your industry which is what I want to turn my attention to now.

Earlier this year the NZSA wrote to me raising concerns about the Private Investigators and Security Guards Act. That letter included a copy of the NZSA's 1994 submission which set out specific proposals for amendment of the Act.

The statistics seem to show the security industry is a robust one. Department for Courts licensing and certification renewal figures show there are now around 1,000 licensed security guards or private investigators in New Zealand.

Working for these security guards or private investigators there are around 4,800 certificated “responsible employees”.

There are also of course, many other people working in jobs that are often viewed as part-and-parcel of the security industry but for which a licence is not required. These include people hired to ensure good conduct and public order on licensed premises (ie bouncers), as well as crowd controllers.

And finally, unfortunately, there are those unlicensed practitioners who legally are obliged have a licence, but don’t.

So as we can see the industry is substantial – but it is facing some difficulties in the way it is regulated.

I know from the letters and meetings I've had and by reading your submission that you want the Act to be reviewed and you want changes made. I understand that but I am afraid that I have to tell you that won’t happen this year.

This government was elected on a mandate of action promised in areas such as health, education and job creation. Those have priority on the legislative schedule. When it comes to the Private Investigators and Security Guards Act - to quote a certain kiwi supermodel – it won't happen overnight but it will happen.

What I want to do in the meantime is to thoroughly canvass the issues with you – the industry – the better prepared we are when we begin a review the more decisive the action when it happens.

So, the focus of what I want to talk about today is the Private Investigators and Security Guards Act 1974 and what might conceivably replace it.

What we need to examine is the growth of the security industry, why the government regulates the industry and the changes to the Act suggested by the NZSA to haul it into this century.

Why the industry has grown
As I mentioned earlier the security industry in New Zealand appears to be mirroring international trends and growing rapidly. I think there are a number of reasons for that.

 First, since the Act was passed 26 years ago levels of reported crime have increased - and so has fear of crime.

 Second, and closely linked to fear of crime, there are the demographics. Many more people, particularly women and senior citizens, live on their own than in the 1970s.

 Third, there have been huge developments in new technologies and cheaper forms of security devices.

 And finally there is the growing availability of security professionals prepared to meet the increasing demand for their services.

Linked to this is a general concern that the police have not had the resources to deal effectively with everyday crime. This is something the government has identified as a top priority.

As a first step we are attacking burglary. We know that the burglar of today is the potential violent offender of tomorrow and we need to break that cycle. Recent figures tell us that 11 percent of burglaries end up in court – this means 89 percent don't. Until we increase the possibility of getting caught we're not going to make much progress.

In an ideal world we would solve the problem and maybe there wouldn't be a need for your industry. But we all know that is not the real world and it is important therefore that your industry meets with the highest possible professional standards that the public expects and the government demands.

So, there are a number of reasons for the industry growth. Many of them are connected to the increasing desire of individuals to protect their property and/ or themselves. That brings me to my next point - government regulation of the industry.

Why does the government regulate the security industry?

The first question I asked myself here is why do we have a Private Investigators and Security Guards Act at all?

One of the reasons the Act was brought in was to prevent breaches of privacy by private investigators. Many of these concerns were addressed with the passage of the Privacy Act 1993.

But there are still at least three main justifications for having a Private Investigators and Security Guards Act.

 First security guards and private investigators perform roles in which unscrupulous individuals have abundant opportunity to steal from their employers, or to otherwise harm their employer’s person, property or reputation. A well-functioning licensing and certification scheme should weed out those likely to do so.

 Second, security guards often act in roles which have a major potential for use of excessive force resulting in damage to persons or property, not necessarily their client’s. Again, licensing and certification should weed out a proportion of those likely to use excessive force.

 And third, private investigators do act in roles which have the potential for breach of privacy. It is one thing to have laws against such behaviour but it’s also useful to have a licensing and certification system which can at least attempt to exclude "undesirables" from carrying out the Private Investigator’s role.

Now let’s move on to the nuts and bolts of the Act.

Private Investigators and Security Guards Act 1974

I am aware that the NZSA and individual members of the association have been actively lobbying successive governments to change the 1974 Act. Let’s look at some of those suggestions for reform.

Coverage
The coverage of the Act has come in for criticism, particularly the way in which crowd controllers and staff keeping order in licensed premises (ie bouncers) are excluded from needing a licence or certificate.

I certainly agree there is a case for requiring such people to be licensed or certificated, or in any event more tightly regulated. Coverage is obviously something that would need to be looked at very carefully in any review.

Licence fees and renewal
The size of licensing and certification fees has come under attack with suggestions they far exceed the cost of administering the Act.

There have been suggestions that it should only be necessary to renew a licence or certificate every five years instead of annually as the case is now. Also that that certificates of responsible employees should be fully portable enabling them to more readily move from employer to employer.

Your association has said there is the possibility of considerable savings if changes were made a long these lines. Again, any review would have to look at this.

One licence
There has been a call, because of the diverse roles carried out within the industry, that there should be one licence covering both security guards and private investigators, with different mandatory training requirements for different business classes. That is something else to consider.

Anomalies
There are some anomalies in the Act when it comes to offences that automatically disqualify a person from getting a licence. For instance a person who has been convicted for throwing acid is automatically disqualified from getting a licence under present legislation, but a person convicted of rape is not.

Having said this, a person who commits a rape or other crime resulting in a prison sentence would almost certainly be automatically disqualified because of another part of the Act. This part says that you cannot normally get a licence if you have been jailed in the previous five years. Still we do need to look at these anomalies in the Act.

Penalties
Another area which needs to be looked at is the size of penalties for offences under the Act. Given there have been periods of high inflation since the Act was introduced since 1974 this will need examination.

For instance let's take the case of someone acting as a security guard or private investigator without a licence. If they are caught and convicted, they face a fine of not more than two thousand dollars under present legislation.

Not only is that penalty not much more (and sometimes less) than the cost of acquiring a licence when all the costs of doing so are taken into account, it is a law that is perhaps not enforced as often as it should be. I know people within the security industry feel that when cases are taken the courts have acted quite leniently.

Unlicensed Practitioners
One suggestion from within the industry to address the problem of unlicensed practitioners is that the Registrar of Private Investigators and Security Guards should be able to investigate unlicensed practitioners in the industry and impose fines on them.

I have to tell you that it would be very unusual to give a registrar of any occupational group that power. It is a power usually divided between the Police (investigation and prosecution) and the courts (finding of guilt or innocence, sentencing). It is unlikely therefore that this would happen but I appreciate that there is currently a perceived gap in enforcement.

NZSA's role
The suggestion was made in your Association’s 1994 submission that the Association itself could play some role in the licensing and certification and perhaps disciplinary process, in much the same way as the Real Estate Institute does for real estate agents.

I would want to think very carefully about this. This is a form of regulation that has become much less popular in recent years, not least because more independent disciplinary processes give greater confidence to the public.

Nonetheless, I do see an important ongoing role for your Association in acting as a voice for your industry, in encouraging best practice, and perhaps in providing some kind of voluntary accreditation process over and above licensing and certification.

As with the Master Builders' model, an accreditation to the NZSA could be a reassurance for the public that those who have that accreditation have achieved standards that exceed those required by law. I know that your association has developed such an accreditation system and this is a positive move.

Conclusion
To conclude, I am mindful or your concerns. I do agree the Act needs to be reviewed and I will be looking for the opportunity to have it reviewed as soon as it is practically possible to do so.

In the meantime, I am grateful for the contribution you have made to developing policy in this area already.

At the end of this conference I would be happy to receive a report on any other issues that you believe need to be addressed by government. As I have said we cannot fix everything immediately.

What I do pledge is that if we can agree on the broad outlines of the proposed changes, I will submit them to my colleagues for consideration in the legislation programme for next year. I can't guarantee the outcome, but I will start the ball rolling.

In the meantime, have an enjoyable conference, and I wish you well for the future.

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