Private Security Personnel and Private Investigators Bill

Hon NATHAN GUY (Associate Minister of Justice) Link to this

I move, That the Private Security Personnel and Private Investigators Bill be now read a second time. I also signal my intention to move a Supplementary Order Paper at the Committee of the whole House stage. The Supplementary Order Paper changes the commencement date to 1 April 2011 to allow time for the industry to prepare for the changes and make some amendments to ease the transition to the new regime.

I am very pleased to present this bill to the House. As the name suggests, the bill regulates the private security industry. Indeed, the industry is very diverse. Normally when we hear the word “security” we think of uniformed guards patrolling barbed wire fences at night. However, there are many members of this industry who are much less visible—for example, people who monitor closed-circuit television cameras and install house alarms, and private investigators hired by insurance companies to detect fraud are all members of the private security industry. All of us rely on members of this industry to protect ourselves or our homes and family, whether at work, catching up with friends at the pub, or supporting our favourite sports team at the local stadium. We often take it for granted, but security personnel protect New Zealanders’ safety, security, and property 24 hours a day, 7 days a week. The bill does not change the overriding purpose of the regulation of the private security industry. Its purpose is to reduce the risk of harm to members of the public by preventing unsuitable people from working in the industry, particularly those with convictions for serious offences of violence or dishonesty.

The main driver for change is that the current Act is over 35 years old. It is outdated and it does not adequately address the risks associated with some types of security work. This bill modernises the law and makes some important extensions and enhancements to address those risks. In particular, the current legislation does not cover security personnel who are responsible for protecting people or, indeed, for keeping order in today’s society. The bill addresses this significant gap.

As with any occupational regulation, the challenge is to balance the risks associated with the industry against the inevitable cost of regulation. I believe that this bill achieves a good balance between those competing issues. The new regime will benefit not only the public who rely on the services provided by the industry but also members of the industry itself. The industry’s reputation will be enhanced by stricter entry standards, training requirements, and better enforcement to weed out illegal operators and unsuitable individuals. The bill seeks to address the risks associated with untrained security personnel becoming involved in physical confrontation. In 2008 the Wellington regional coroner, Ian Smith, called for compulsory training following the tragic death of Cedric Joyce in Blenheim in 2005 after he was restrained by bouncers outside a pub.

Reform of the security industry is also timely, with the Rugby World Cup coming up next year. Under the bill, crowd controllers such as bouncers, who play an important role at busy bars and pubs, will be regulated for the first time. People working in this type of role must be suitable as they will be expected to deal with any crowd-control issue that may arise. The current legislation does not include any training requirements or minimum competency standards for security personnel. The bill will enable regulations to be made requiring industry members to be properly trained. This will assist in ensuring that security personnel have the necessary skills to perform their role safely and competently. The Government intends to require personal guards, property guards, and crowd controllers to be trained. The detail of the training requirements, including the timing of their introduction, will be determined when the regulations are developed after the bill becomes law. This change will benefit not only the public but also the staff themselves by increasing the value of their licence or, indeed, their certificate.

The bill will also improve enforcement. A dedicated enforcement body will be established called the complaints, investigation, and prosecution unit. The unit’s role will be to ensure compliance with the new legislation. This will include carrying out investigations, providing information to the new Private Security Personnel Licensing Authority, and prosecuting offences under the Act. Currently, this role falls solely on the police, who often have to give priority to more pressing matters. The new unit will be funded by the industry through licence fees.

The bill also updates offences and increases penalties. For example, the penalty for operating an unlicensed security industry business will go up from $2,000 to $40,000 for an individual and $60,000 for a company. This should act as a deterrent to cowboy operators.

The bill changes the licensing regime from an annual to a 5-yearly process. This will streamline processes and reduce unnecessary cost and bureaucracy. Instead of applying for a licence renewal each year, businesses and individuals will have to provide annual updates to the licensing authority. For example, they will have to advise the authority if they have been convicted of a relevant offence in that time.

I now turn to the amendments recommended by the Justice and Electoral Committee, which worked very, very well as this bill went through the select committee. Before talking about the detail of those changes I take the opportunity to thank everyone on that committee for getting the bill to where it is now. I also extend my thanks to the 38 organisations and individuals who took the time to read the bill—which is not exactly light reading, with over 100 clauses—to think about the issues, and to draw on their own personal experiences to come to the select committee and make a submission on how the legislation can be improved. The committee, after considering those submissions, recommended several changes to ensure the bill met its objectives. Many of these changes are technical in nature, to clarify aspects of the bill and to make it operate as intended. I also acknowledge the Ministry of Justice officials who have helped through that process.

The most significant policy change recommended by the committee relates to clause 66. Clause 66 carried over a provision from the 1974 Act that prohibited private investigators from taking or using photographs or audio recordings without obtaining the person’s written consent. That provision has been controversial for quite some time, and generated much debate before the select committee. The prohibition made it very difficult for private investigators to do their work—work that is legitimate and often important, such as detecting fraud or locating missing persons. Private investigators were also prevented from doing what other members of the public, including—as we in this House know—the media, can do. The majority of the select committee recommended removing clause 66 and replacing it with a requirement to make regulations that prescribe a code of conduct for private investigators. The bill requires the code of conduct, at a minimum, to cover the surveillance of individuals by private investigators. However, it could also address other matters if necessary.

The select committee made several other amendments to clarify and improve the operation of the bill. An example is that the committee extended the range of matters that can disqualify a person from holding a licence or certificate, such as conviction for certain offences of violence and dishonesty. The select committee extended the list of relevant offences to include offences under the Arms Act 1983, criminal harassment in breach of a restraining order under the Harassment Act of 1997, and intimate covert filming offences under the Crimes Act of 1961. Conviction for any of these offences would reflect on a person’s suitability to do security work.

In conclusion, I am confident that the bill achieves reform that is proportionate to the risks. Most members of the private security industry are hard-working professionals, in whom New Zealanders can place their complete trust. However, regulation encourages all members of the industry to meet the high standards that we expect today in New Zealand. I believe that this bill will achieve that goal in an efficient and cost-effective way. I commend this bill to the House.

JACINDA ARDERN (Labour) Link to this

It is my pleasure to speak on the Private Security Personnel and Private Investigators Bill. I acknowledge, first of all, the work that the Associate Minister of Justice has done on this bill, taking over from the good work of a Labour Minister. I believe it was Clayton Cosgrove who had this bill under his jurisdiction prior to the last election. I also acknowledge the Supplementary Order Paper that the Minister has indicated will be introduced, which relates to the timing of the enactment of this legislation, shifting the date from 1 December 2010 to 1 April 2011.

The Government has a tricky balancing act on its hands. Quite a bit of substantive work is left to be done by the new regulatory body that will exist, such as work on the code and certain other matters. As the Minister pointed out, the Government also has the balancing act of the Rugby World Cup. So I wish all those involved in the work on this bill the very best of luck. I will flag some concerns that Labour has about the residual work that will be carried out by those individuals, some of which I am not sure they will be able to remedy. From our perspective, the process, particularly in relation to clause 66, has been wrong. I will spend a bit of time on that issue.

I agree with the Minister that this area is in need of an overhaul. We have the Private Investigators and Security Guards Act 1974, but, obviously, things are a bit different in New Zealand now. The range of work that security guards undertake—and not just security guards but also those who consider themselves to be working in security, such as bodyguards, crowd controllers, and those who have private security businesses—means that it is a very different industry now.

This legislation had a range of competing demands on it. First and foremost, it is interesting to consider that those who monitor our doors at evening establishments are in many ways—as we heard from the hospitality industry—the first enforcers of alcohol legislation. Businesses can lose their liquor licences based on whether those individuals carry out their jobs properly. Yet we do not have a particularly comprehensive regime for those individuals. We have seen, for instance, the case of a bouncer whose restraint of an individual led to that individual’s death, which is one of the more high-profile reasons behind this new legislation.

There is a range of new, competing demands on the roles that these individuals play. We can see the expansion of this industry in the fact that, currently, we have about 9,000 people under the current regime. With this new licensing regime and its extension, we are looking at about 18,000 people coming within its ambit—and rightly so. This area relates to one of the more significant things that we will see changed as a consequence of this bill. Under the Private Investigators and Security Guards Act—and I think this will surprise some members of the public—individuals are not required to carry out mandatory training. That is something, I think, that was ripe for review.

So what are the bill’s three main provisions? We have no problem with—and, in fact, we wholeheartedly support—a significant part of this bill. The introduction of the comprehensive licensing requirements, which include police checks—I understand that one of my colleagues will speak on that later—will be extended to cover a wider range of people engaged in security-related activities: crowd controllers, bouncers, bodyguards, and private security staff guarding people in their legal custody. I think it is right that that regime be extended. It will, as I have already mentioned, take in a considerably larger number of workers.

Private security staff will be required, for the first time in New Zealand, to undertake training if their job is guarding property or persons, or keeping order. Again, crowd control, as we heard during the select committee process, is a growing area of business. Often, requirements for health and safety reasons mean that when a big contract is going out for an event, crowd control is part of that. Some concern was expressed that not all of the companies operating in that realm were doing so professionally, and there was enthusiasm from the industry to bring in a regime like this in order to even the playing field, and prevent those who are acting responsibly from being undercut. The training provisions will be significant, and will add in a positive sense to the way the industry is currently working. There is time to work with the industry, I hope, in developing the training regime that will ultimately sit around the industry. Those who are most successful in the industry are those who have had a huge part in building it; they are the ones who know its needs and know its requirements.

As the Associate Minister of Justice has already mentioned, there will be a dedicated enforcement body, the complaints, investigation, and prosecutions unit, which not only will ensure compliance but will have a range of other responsibilities. It is only right and makes sense that if we have extensive regulations governing the way that those who work in the electricity sector are regulated, then those working in an area like this should have a regulatory body also. They have constant interface with the public, in often fragile and delicate situations,

I will talk about the significant concern that both Labour and the Greens shared during the consideration of this bill. I acknowledge that concerns about clause 66 were raised most often by the industry itself. Just for the sake of clarity for the House, clause 66 restricted the taking and using of photographs and other recordings by a private investigator or a private investigator’s employee, and the making or using of other recordings without the subject’s written consent. Of course, the argument made to us by the industry was that the bar was higher for it than it was for the public. Basically, investigators argued that if members of the public wanted to take a photo of an individual, then currently they could, but investigators had a much tighter regime sitting around them. My response to that was: “For good reason.” Private investigators’ income is derived and generated by particular jobs where they pursue individuals for whatever reason that they have been employed to do so, and those reasons are many and varied. There is good reason why there should be protections around the way that the industry operates when it comes to an individual’s privacy. But we had quite a lengthy discussion on clause 66, which is too much of a blanket clause. We asked whether it was overly prescriptive and overly harsh in terms of the way that an investigator does his or her job.

The Justice and Electoral Committee considered this clause in the most appropriate way it could. It was aware that the Law Commission was reviewing the law of privacy, so committee members asked, rightly so, for the Law Commission to update the committee on the progress of that review. The commentary on the bill notes that the Law Commission said that although in its view clause 66 was too restrictive, it did not believe that it should be repealed until legislation had been enacted that provided some kind of protection against intrusive surveillance. A discussion in the select committee about timing followed this, in terms of whether it would cause too much disruption to the industry if we were to keep clause 66 in place and then come back and review it at a later date, whether we should hold back the legislation altogether until we had resolved this issue, whether we should repeal clause 66 on the condition of the establishment of a code—which is essentially what we have here—or whether the select committee members themselves should try to draft a replacement clause. I note that in that discussion the advisers took a view like the view of the Law Commission. Their view was that clause 66 needed to be reformed, but they advised against proceeding with the options discussed by the committee, and instead suggested that waiting for the result of the Law Commission’s work would provide the best advice.

Ultimately, Labour and the Greens were not in favour of clause 66 being removed and replaced with a regulation-making power. From my recollection, there was not enough certainty for us in that resolution. I do not believe that enough leadership was shown in determining the direction that the Government wanted to see privacy legislation going in, and my fear is that there will not be enough coherence between what we will ultimately have as a consequence of this repeal and what the Law Commission will produce as a result of its review. I look forward to discussing clause 66 at greater length in the Committee stage, because it remains a concern for me, in particular.

CHESTER BORROWS (National—Whanganui) Link to this

I rise to speak in favour of the Private Security Personnel and Private Investigators Bill. This bill came before the Justice and Electoral Committee. The committee members applied themselves to it in a very studious way and sought wide consultation on it. A number of people submitted to the committee. A lot of those submitters came from the industry, and some people submitted as individuals with concerns about where part of the bill might be going, relating to the ability of private investigators to take photographs, to videotape, and to use listening devices.

The main thrust of the bill is that technology has moved on to a place that was never envisaged at the time the Private Investigators and Security Guards Act, the legislation that the bill is replacing, was passed in 1974. We had a very graphic presentation from Trevor Morley, who was previously the president of the relevant industry association. He brought before the committee a number of pieces of fairly basic technology, like cellphones and digital cameras, and he made the point that although these pieces are seen as common, everyday items in most people’s possession, they are not allowed to be used in certain ways by private investigators. Bearing in mind that private investigators have been through a certification process and a vetting process, they are apparently more trusted than the average member of the public, yet they are not more trusted than the average member of the public when it comes to doing things like taking photographs and making sound recordings.

For instance, we have the ridiculous situation where if I was a concerned parent who had instructed a private investigator to go out and look for my miscreant, runaway 15-year-old daughter, I could give the private investigator a photo of my daughter and say that this is the girl I want him to look for. Under the current law, the private investigator cannot show that photograph to anyone else and ask that person whether he or she has seen her, but he could stand in front of that person and say that she is about 5 foot 6, has brown hair and green eyes, and all the rest of it. I ask whether that is ridiculous, and whether that is just dumb. That is why this bill has been brought before the House.

A number of other measures in the bill relate to security guards, personal guards, and a number of positions that will become invaluable during the smooth running of the Rugby World Cup next year, which is one of the reasons why we need to have this legislation passed through the House quite quickly.

As was previously mentioned by Jacinda Ardern, we had a discussion on clause 66. A number of members of Parliament certainly held some reservations in respect of that clause. Two members in particular, one from each side of the House, had been the subject of the ongoing videotaping of their houses at the time. We also then heard of the ridiculous situation where, although a private investigator cannot videotape a person’s home as a private investigator, he or she can approach that person’s neighbour and ask the neighbour to do the videotaping from his or her place. That is completely without any sanction whatsoever. Many private investigators acting in that way are contracted to do so by newspapers and other media outlets. They cannot do it, but a journalist can. The person who gets to write the story is able to do the taping, the sound recording, or the photography, but the certificated, vetted private investigator cannot. That seems a bit silly.

I will touch on one other point, in relation to training. It was suggested initially that people seeking certification under new provisions would be required to go through training. In the end, it was decided that this training should really be a display of competency, bearing in mind that a lot of people who will be working in this field have previously been working in it for a number of years, and a display of competency and ability is probably far more important than sitting in a classroom and undergoing X number of hours of training.

We look forward to the relatively smooth passage of this bill. We recognise that there are a couple of matters of contention, particularly for the Green Party and the Labour Party, but in the end I think that people can see that if we are to extend powers, it is better to extend them to people who are certificated and who are accountable, rather than to members of the public who are not.

We also have to remember that at the same time we have the transition of the Search and Surveillance Bill, which looks at regulating State agents and their ability to do similar activities. If we are constraining those activities, then we should be constraining, or at least monitoring and regulating, the activities of private security personnel and private investigators. Thank you.

CHRIS HIPKINS (Labour—Rimutaka) Link to this

I am happy to take a fairly brief call on the Private Security Personnel and Private Investigators Bill. I did not have the opportunity to sit on the Justice and Electoral Committee for the entirety of the hearings on this bill. I was a fill-in member for some of the deliberation on the bill, and—

KEITH LOCKE (Green) Link to this

The Green Party will also be supporting the Private Security Personnel and Private Investigators Bill, but we have similar criticisms to those outlined by the Labour speakers about the elimination of clause 66.

There has been a huge expansion in the number of security guards in New Zealand. A figure of 18,000 has been thrown around by two previous speakers, although that 18,000 covers both security guards and private investigators. When I think back to when I was growing up, we hardly had any security guards in our society. When we went along to a dance, there might be somebody on the door who could be described as a security guard, although in those days they did not tend to wear uniforms. Now everywhere we go there are people in different uniforms running around, doing security duties. It makes one wonder what has changed in our society. I think that one of the problems is that our society has become more unequal. There is more alienation and the problem is greater of people who will descend into bad behaviour, theft, and things like that. So I think that we have to address this problem. Although we are supporting this bill because it will put certain organisation and restraints around the operation of security guards and private investigators, which is all to the good, we have to look at the underlying problem of why this industry has expanded so much. We also have to recognise—and the bill recognises this—that people who are security guards and have these uniforms on do not have any more rights or powers than any other citizen. I think that has to be taken into account.

Private investigators, who are covered by one part of the bill, do create certain difficulties in society, and it is appropriate that they be regulated. Some of them get a bit out of hand. There has been a lot of controversy over a particular company called Thompson and Clark Investigations, which was discovered a couple of years back putting an agent into a voluntary group called the Save Happy Valley Coalition, which was trying to protect a pristine area on the West Coast, its trees, and its wildlife from despoliation by unnecessary mining. Thompson and Clark Investigations, which is a private investigating group, put an agent into that group, creating suspicion among members of the group about who might be an agent, who might not be, and all that sort of thing. It is quite wrong to infiltrate groups in that way, and it should only be done by the police when dealing with really serious criminality. Otherwise, if we are dealing with good people—and in this case they were good people—it only creates suspicion and erodes the solidarity that is necessary for voluntary organisations to prosper in society. It was a great intrusion into the privacy of the individuals of the Save Happy Valley Coalition.

More recently, Thompson and Clark were discovered, in an article published about a month ago in the Sunday Star-Times, to have put a tracking device on the car of an animal rights activist named Rochelle Rees, who had been involved with others in an animal rights group campaigning against factory-farmed chicken, sow crates, and the like. For that, her privacy about where she was moving in society was being tracked by private investigators. Now that we see private investigators using that technology and being so intrusive into the lives of others, it is appropriate that they be properly restrained.

Chester Borrows chairs the Justice and Electoral Committee on this and other bills very ably, and he said that, apparently, because of the regulation, training, and everything else that private security guards and investigators undertake, they should be trusted more than the rest of the population to carry out certain functions, but they are actually less trusted in that they somehow have fewer rights because of restrictions on their use of audio and video recording and taking of photographs. He also referred to the Search and Surveillance Bill, which is currently before the select committee. I think that bill explains why we have to be careful about getting rid of clause 66 of this bill. The Greens are somewhat critical of the Search and Surveillance Bill, but there are some good aspects to it, in terms of regulating the use of search and surveillance by police and other State agencies. The idea is not that those agencies are any less capable or skilled—of course, they are trained as well—but because their particular task involves intruding on people’s privacy through search or surveillance work, they are subject to certain controls and regulations, and rightfully so.

It is the same with private investigators. In this society they make their money by intruding into the privacy of people, often in quite an extensive way, and, with the growth of new technology, digital technology, tracking devices, and all the rest, they can intrude to a greater degree than in the past. Restraining them from using those devices is appropriate. The world has not fallen over through the restrictions that have been imposed on them to date in terms of using audio and video devices and taking photographs. Why not continue? We say “If it’s not broke, don’t fix it.”, and as it is not really broken, we should restrain security guards in that way. It was wrong to say that we should get rid of clause 66 and that instead we could have a code of conduct further down the track. I do not think that is a sufficient way to operate. There should not be a change in the law or the current practice until some alternative is sorted out, and the Greens do not necessarily think that a code of conduct will be the most appropriate way forward.

The other thing is that the Law Commission is still in the midst of trying to work out appropriate changes to privacy legislation for the population as a whole. It is true that at the present time members of the public have greater rights, to a certain extent, than some of the agencies. For instance, at the moment anyone can put a tracking device on my car or anyone else’s car, or put a tracking device on someone’s clothing, and that is completely within the law. If the police do that, they must have a warrant, and under the Search and Surveillance Bill other people will need to have a warrant as well. The question of the new technology being used in an intrusive way is being dealt with by the Privacy Commissioner and the Law Commission at the present time. The Law Commission has done a lot of work on the area. I think we should wait until all that work comes back before we go ahead and give such agencies more powers.

We are discussing in debates on other bills such as the Identity Information Confirmation Bill the fact that technology allows for more and greater intrusions into our privacy than ever before. Facial recognition systems are being used at our airports to compare the appearance of people going through airports with the photos that are on their passports, but now they are being more used in general society too. That can intrude on people’s privacy, as their whereabouts, identity, and movements can all be tracked to a certain extent by facial recognition systems. Those systems are now being used by the Google company in its Picasa Web Albums. Using that new technology people can check a photograph of a person’s face against thousands and thousands of other photographs all at once. I use that as an illustration to show that when discussing the expansion of technology that intrudes on our privacy we have to consider carefully how it might be applied by private investigators and the like in our society today. Thank you.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

The Private Security Personnel and Private Investigators Bill is important in ensuring that security guards, bouncers, and doormen provide relevant police information, wear authorised badges, and hold licences, or else cop fines of up to $60,000. It was encouraging to see submissions from the industry itself calling for a private investigators’ code of conduct to be established. It may well be that further amendments are needed to make that happen in the interests of the rights and safety of both the public and security staff themselves.

This bill is also important because many of the people engaged in the industry are Māori and Pacific Islanders, many of whom were originally enticed into the business because of their size and menace, without any serious consideration being given to the need for proper training—an area that hopefully will also be standardised within the industry from now on. I know from mixing with security personnel at various pubs, clubs, and sporting events around the north that many of them already undergo training as part of getting their formal New Zealand Qualifications Authority qualifications, and that many are expected to get referees and even police checks. But I note that those standards differ between agencies and that in some cases staff have no qualifications at all, nor are they encouraged to do anything about getting them.

I also take this opportunity to speak briefly about facial tā moko and the difference in standards as they apply to people around the country who carry the moko. Some years back a Gisborne woman was banned from a bar because of her moko, and last year one of Aotearoa’s leading tā moko artists, Mark Kōpua, was banned from entering Christchurch’s Bourbon Street Bar because his moko was supposed to represent gang markings. In his response Mark Kōpua said of his moko: “It’s my heritage, where I’m from, who my ancestors were, it’s everything about me”. He laid a complaint and, to its credit, the Bourbon Street Bar apologised and created a new policy to ensure the same mistake would not be made again. Mind you, my own view on this particular issue is that those who choose to wear the moko will do well to steer clear of places where drunkenness, ignorance, and violence are likely to degrade the mana of both the moko and the wearer.

The Māori Party will support this bill at its second reading, but also we will be advocating for the inclusion of clear cultural standards consistent with tikanga Māori to ensure that the boorish insults that Mark Kōpua had to endure do not happen to others in the future. Kia ora tātou.

SIMON BRIDGES (National—Tauranga) Link to this

It is good to take a call on the Private Security Personnel and Private Investigators Bill. I will pick up on a couple of the comments made by the Associate Minister of Justice, Nathan Guy, in this second reading. He spoke, quite, rightly, about how the bill modernises this area of law. We have legislation that is a bit over 35 years old, and of course it is quite right that we modernise this area. As I think Chris Hipkins said, and I agree with him on this point, we are dealing with an area where technology plays a very substantial role. The use of new surveillance devices, recording devices, and computers, and the ability of people to listen in and observe what others do, has never been greater. We often hear speeches in this House about how the law is being modernised, but that is particularly important in relation to this legislation, given the nature of what it is dealing with, which is security and investigation, and given the technological advances we have seen in this area.

I think, for example, of a story I read in the New Zealand Herald earlier this week. The chief press officer for the current British Prime Minister is involved in a series of stories because at one time he was the editor of News of the World. His position is that he was not aware of this, but at the time he was editor the paper was tapping in, in quite a substantial way, to phone calls of members of Parliament. It was listening in to what they were saying. It was also listening in to ministerial phone calls. For example, one of the alleged cases was an alleged affair by the then Deputy Prime Minister John Prescott. We can see what technological advances mean in this kind of area. Investigations can become quite intrusive. As I say, the law needs modernising, and this bill does just that.

I will pick up on another point that the Minister made. He said that we are striking the right balance here. Again, we hear that comment quite a bit, but again it very much is the case here that on the one hand if we get things wrong we can have a lack of security and real problems at that end of the ledger in our society. On the other hand, if we are not careful, we can have, as I think some would argue they do in the United Kingdom, a surveillance State where one cannot go anywhere without being caught by security, closed-circuit television, and the like. In a very real way, we are putting forward a balanced bill, and a bill that modernises the area of law here.

It would be true to say that at the Justice and Electoral Committee, the debate on clause 66 was one of the most interesting debates we had. I was going to say it was heated and controversial, but I would not characterise it in that way. The debate was thoughtful, and certainly I thought the points raised by the likes of the Hon David Parker were well made, although in the final analysis I did not agree with them. Clause 66 is the clause that carried over the provisions from the old Private Investigators and Security Guards Act of 1974, prohibiting private investigators from taking or using photographs or recordings of any kind. I can understand the position taken by Labour colleagues on the select committee, that this provision should be carried over, because such powers can be quite intrusive.

But, ultimately, the position I came to, as did other colleagues, was that if we took that to its logical conclusion we would be getting into the silly situation where private investigators could not do something that anyone else could do—that individuals, private citizens, and actually journalists could do, although some would say that journalists do not always maintain the highest ethical standards. We were getting ourselves into a silly situation, particularly when, as we have done, we have put in the provision to have, and a requirement for, a code of conduct for private investigators so that they will be beholden to higher standards than private citizens will be in this area when taking photographs and doing visual recordings.

Let me just flesh out the point I am making. I was very mindful in the select committee of the situations I had seen in court cases. I must confess that at the time I did not realise the reason for this—it was only at the select committee that I did. In accident compensation cases and Work and Income fraud cases, where the police were not involved, private investigators would be used to do the legwork and to investigate whether the complaint had any substance. We would often come to court, where I can think of particular examples of a private investigator, someone privately paid and in his or her own firm, who would not be presenting photographs but would laboriously go through what he or she had observed. I had never really thought about why that was the case, but the reason, of course, is that those private investigators came under the old law—and we are changing it—and they were prohibited from taking photographs and video recordings.

I will give one example of a case where a person with, it was said, a very bad back was receiving accident compensation and was playing golf at a golf course nearly every single day. In fact, he had put in his score cards and was one of the best golfers at the course. Common sense would suggest that all the private investigator should have been doing was taking some photographs, or maybe making a video recording, of this guy swinging at the ball and playing some pretty good golf. As I say, under the old law private investigators could not do that, and that, to me, seems silly.

I will give another example of man who was receiving accident compensation who had one of the biggest private lawnmowing businesses in the Bay of Plenty. Again, it was difficult to prove. A person can swear black and blue that he or she has not been mowing lawns and has a crook back, but in fact that person has been mowing lawns every other day, and the private investigator, who under this new law will be governed by a strict code of conduct, cannot take photographs and the like.

I contrast that again with the situation we have had, and will continue to have, of any citizens out on the street being able to take photographs and do what private investigators, who are beholden to a higher standard, cannot do.

To speak of another News of the World example, we get into cases like the one involving Fergie, as she is known. She was video-recorded by journalists, and caught in a very compromising position. The situation in this country would have been that everyone else could do that, but private investigators would not be able to, because their code of conduct would probably prohibit that sort of unethical entrapment.

I come back to the point that we are modernising the law, and we have balanced legislation. In respect of the interesting provisions in clause 66, although I accept the points made by the Labour members, as far as they go, that privacy is important and that we need to be balanced and responsible in this area, I think it is right that we have a law whereby private investigators can, for legitimate purposes, and often very much in the public interest, take photographs and video recordings, to be used in court and the like, if they are admissible, because they will be beholden to a strict code of conduct. This will mean that they should have the ability to do this in the public interest.

CARMEL SEPULONI (Labour) Link to this

I will go back to when the Private Security Personnel and Private Investigators Bill was first introduced. I remind the House that it was introduced by the previous Labour Government. It was introduced by Clayton Cosgrove in response to an actual event that happened in 2005, when a Blenheim man died after he was restrained by a bouncer. It was after that tragic accident that Labour responded and saw a need for the legislation to be reviewed, and that is exactly what happened.

It has taken a bit of time for National to actually push this bill through. It would have been good if National had taken into consideration the well-being of New Zealanders and the fact that they are at risk out there because this industry is not regulated. Although a number of incidents have prompted a call for the regulation of this industry, the only thing that prompted National was the fact that the Rugby World Cup is on the horizon—not a genuine concern for the safety of New Zealanders. This bill is being pushed through so that the law will be in place by June 2011. It will be in place by the time the Rugby World Cup is held in New Zealand. That is good, but it could have been done a little bit earlier. But never mind, the time has gone and here we are discussing the bill in the House.

I will discuss three main provisions of this bill. The first is the licensing requirements, including police checks for criminal convictions. These requirements will be extended to cover a wider range of security-related activities—in particular, crowd controllers, including bouncers, bodyguards, and private security staff who guard people in legal custody. I go back to something that Hone Harawira said. When I first picked up this bill I thought about the fact that a large proportion of this workforce is Māori and Pacific. Many of them have fallen into these jobs largely because of their size and because they suit the work, so they are hired into those positions. I agree that there needs to be a level of licensing. Part of this bill relates to training, and there needs to be a level of training not only to protect the general public but also to protect the people who work in those jobs. We need to ensure they are well equipped to deal with the situations they encounter, keeping in mind that many of those encounters can be a little bit worrying and can involve alcohol. So it is important that they have the right training to be able to deal with them.

With regard to the licensing requirements, I want to see a level of discretion in respect of the licensing authority that will be issuing those licences. I know of a number of people practising in these particular roles who have been doing so for years and who have previous criminal convictions going back many, many years but who have not had any problems since they have been in those positions. For example, people may have been security guards for 10 years but had a criminal conviction 20 years ago. It may have involved violence, but during the extent of their time doing the job they have had no issues. I think that the licensing authority may need to take that into consideration, particularly if some of these people had entered into this job as a career and intended to stay in it for a longer period. If they have had no issues, despite the fact they have a criminal conviction, and if they undertake the training and are able to achieve the standards that are set out by the licensing authority, then there should be a level of flexibility and a level of discretion that the licensing authority can exercise to ensure that those people are not convicted twice over in their life. If they have served their time, come out of prison, and are living a decent life and working safely in one of these positions, we should not be punitive towards them or punish them in any way. That would be my first concern, and Labour will be bringing that issue up in the Committee stage to ensure that the licensing authority is given that level of discretion.

A second point is that the bill brings us into line with the United Kingdom and Australia with regard to regulating the industry. For the first time in New Zealand private security staff will be required to undertake training if their job is guarding property, guarding persons, or keeping order among groups of people. Essentially, training will be required if the nature of the work is such that there is a significant risk of physical violence occurring. The details of the training requirements will be made explicit via an Order in Council.

The third point is that a dedicated enforcement body—the complaints, investigation, and prosecution unit—will be created to ensure compliance with the new legislation and heavier penalties for offending. A penalty for unlawfully employing an unlicensed security guard will go up from $2,000 to $20,000. The penalty for unlawfully operating an unlicensed business will go up from $2,000 to $40,000 for an individual, and $60,000 for a company.

I refer again to the incident in Blenheim in 2005 where a 25-year-old was killed outside a nightclub. That was one of many situations where things got out of control and a security person became involved in some sort of altercation with a member of the public. Another example was referred to by the father of the man who was killed. Having gone through the matter of his son’s death, he found out from another woman that her son had been thrown down the stairs by a bouncer and now has brain damage. I am sure that many of us—maybe in our earlier days, not these days—have seen altercations outside bars between bouncers and members of the public. At times we may have wondered whether the security personnel had taken things too far, or whether, on the other hand, the member of the public had provoked and provoked, so the altercation had been from both sides.

Labour will support the bill but we have questions. I raised the first question earlier, and it relates to the discretion that the licensing authority will have when granting licences, taking into consideration criminal convictions but not being too punitive, particularly if that person has been in that role for a long period.

The other issue we have relates to the deletion of clause 66, which would have restricted a private investigator or employee from taking photographs or making recordings without consent. The Justice and Electoral Committee, as we have been told, heard divergent views on that topic. Some people argued that the restriction would inhibit the work of private investigators and that the public interest in investigating criminal activity outweighs public privacy. Others argued that the clause should be retained to avoid abuse and unfairness. The select committee recommended that, despite concerns expressed by Labour and the Greens, clause 66 should be deleted and a new clause 106A be inserted to create a regulation-making power to allow codes of conduct to be made for licensees.

Labour opposes this change. It is not in favour of deleting clause 66 and replacing it with a regulation-making power, because the outcome of the Law Commission’s review of privacy is uncertain, and the shape of the new legislation in the privacy area is not clear. Also, the amendment could give private investigators wider surveillance powers than enforcement agencies such as the police. Labour’s preferred option is to proceed with clause 66 as introduced, and to consider reforming this provision once the Law Commission has released its final report. The commission has already recommended that Parliament enacts a new Surveillance Devices Act, which will include new offences relating to the recording, trafficking, and filming of people.

DAVID GARRETT (ACT) Link to this

Members will be aware that in my short time in the House I am always extremely pleased when the House can agree on a matter. This is another one of those relatively rare occasions when there is agreement on all sides. Even better than that, I am moved to rise—I was not going to—to register our support for the Private Security Personnel and Private Investigators Bill, and also my agreement with an excellent speech made by Ms Sepuloni.

KANWALJIT SINGH BAKSHI (National) Link to this

It is my privilege to participate in the second reading of the Private Security Personnel and Private Investigators Bill this afternoon. This bill highlights concerns demonstrated by the review of the 1974 Private Investigators and Security Guards Act. This bill repeals and replaces the Act.

There have been major developments since that Act was enacted in 1974. Public and private security personnel did not have access to cameras and other surveillance equipment in those days, as they do today. The bill will ensure that in future there will be better screening and monitoring of all personnel entering this industry, and it will bring New Zealand in line with the United Kingdom and Australia.

Due to terrorist attacks worldwide and other security threats, security personnel may find themselves in a situation where there is a risk to their lives, and may even encounter physical confrontation. This bill regulates all people involved in this industry to undertake some kind of training to handle such situations. In particular, bouncers will now be required to undertake training and hold a licence. I know that everyone in the House will have heard stories about patrons of bars or clubs being seriously hurt or killed in altercations with bouncers or other customers. We all know about, or can imagine, the damage that can be done through the improper use of personal and confidential information. This bill addresses these very real and very significant risks.

The other thing I want to mention in relation to the bill is that the good people in this industry—the vast majority, who carry out their roles with the highest degree of integrity and take pride in their work—stand to gain as much as society. Any industry is degraded by the presence of cowboys. Therefore those who hold themselves up as able to perform these roles with integrity and skill are protected and insured by this bill. We can have faith as a society that people carrying out these roles have skills and training and that they serve to enhance the reputation of the profession as a whole.

Volunteers, such as people performing volunteer neighbourhood patrols, do not have to hold a licence or a certificate of approval. In-house security personnel—people who are employed to provide security services directly to their employer—do not have to have a licence or hold a certificate of approval. The exception is that an in-house crowd controller, such as a bouncer employed by a bar, has to have a certificate of approval. It is very important for crowd controllers to be trained, as we will be hosting the Rugby World Cup next year. These crowd controllers should have adequate training to handle such a situation.

This bill also provides for an increase in penalties to individuals and companies who employ someone without such training from $2,000 to $20,000. Any individual operating an illegitimate business will be fined $40,000, and any company operating without a licence will be liable to pay $60,000.

During the select committee process many submissions were received and heard. The main concern was about clause 66. Clause 66, like the Act of 1974, prohibits private investigators from taking or using photographs or audio recordings without obtaining a person’s written consent. This clause is quite controversial. The select committee has a majority undertaking to remove clause 66, which will be replaced with a regulatory code of conduct for private investigators.

With its balanced approach to regulation, the bill provides for a modest, low-cost, and self-funding occupational regulatory regime in response to concerns that the 1974 Act is out of date. It strikes the right balance between the regulatory cost and the risk associated with the industry. The bill will ensure better screening and monitoring of individuals who want to enter this industry. I support this bill in its second reading.

IAIN LEES-GALLOWAY (Labour—Palmerston North) Link to this

As other members have indicated, it is a—[ Interruption]—goodness me, I thought the Private Security Personnel and Private Investigators Bill was fairly non-contentious, but all of a sudden things have heated up a little bit. I was going to say that, as other members have said, it is a pleasure to rise and speak on a bill that has cross-party support. This is something we know happens quite regularly in the House. People outside feel that the Opposition opposes for the sake of opposing, sometimes, but we know that that is not true. Mr Garrett has spoken about his appreciation of the Opposition’s support of this bill, and the Private Security Personnel and Private Investigators Bill was originally tabled by the Hon Clayton Cosgrove when Labour was in Government.

DAVID BENNETT (National—Hamilton East) Link to this

It is a sign of the mood of the House today that all political parties support the Private Security Personnel and Private Investigators Bill. They see the need for reform in this area. The last reform of the legislation was many years ago in 1974; many of us were just young children at that time.

The reform is necessary because this is practical legislation that impacts on a lot of people’s lives, not only those working in those industries but also those taking advantage of the hospitality industry. They need to feel safe and secure in the environment that they are in. People working in the hospitality industry also need to feel that they have the right powers and responsibilities, because public opinion of what is demanded in the hospitality trade and also public expectation of what somebody can or cannot do in that occupation have changed over time. There has also been a change in customers’ perceptions of what can and cannot be done to them, should they get into a situation dealt with by security guards—or bouncers, as security staff are more commonly known.

This bill also deals with private investigators, security technicians, and other security-type arrangements. It sets out a code that, although self-regulating to some extent, is not aggressively restrictive or regulatory. In that way, not too much expense is incurred in satisfying the public policy element that the bill seeks to provide for in its updated approach to the legislation.

The parties in this House see this bill as something they would like to support, and we thank them for that support as we work through the individual clauses. Opposition members have raised concerns over clause 66 and have talked about the amendments they would like in that area. I am sure those concerns will be discussed further as the bill goes through the political process, and we will take into account the Opposition’s point of view on that area.

Essentially, this bill updates an area of our law that has for a long time been without the degree of modern regulation that it should have. It provides security for those in the industry and also for customers of organisations that provide that kind of security. We support the bill as it goes through this House. Thank you.