PRIVATE SECURITY AND THE LAW 1

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Private Security and the Law

Private Security and the Law

Introduction

As the world continues to experience various changes influenced by emerging issues, such as domestic and international terrorism, the function of law enforcement has been redefined. Today, most countries have instituted laws to enable the creation and functionality of private security agents. These agents play a significant role in ensuring the safety of individuals and their properties. As opposed to the public law enforcement officers, the officers employed by these private security agents only protect private properties and portions of the population (Abrahamsen & Williams, 2007; De Waard, 1999). The fact that private security agents are not under the watch of the government also means that they are out of reach when it comes to public scrutiny and accountability (Mehra, 2009). In Australia, private security agents are an integral part of the policing function (Prenzler, Earle, & Sarre, 2009). However, there are increasing concerns that these agents lack mechanisms of accountability for their officers’ actions. Just like public police officers, their private security counterparts use excessive force and trample upon the rights of individuals and groups.

The Rise of Private Security Agents

Today, people everywhere are confronted by private security personnel that insist on conducting searches and other forms of interrogation. The habit is especially common in shopping malls, transport stations and hubs, learning institutions, residential estates, and workplaces (Noaks, 2000; Shearing & Stenning, 1981). Notably, most of the searches and interrogations occur on private properties as opposed to public spaces where the state or public law enforcement officers are responsible for the policing role. However, on most occasions, individuals refuse to comply with the demands of private security officers regarding searches and interrogations, something that often results in the use of excessive force by the latter. In Australia, citizens are concerned about the source of authority that private security officers exercise in conducting searches, interrogations, and apprehensions (Prenzler, Earle, & Sarre, 2009). Furthermore, there are also questions regarding the circumstances that permit the use of force by private police officers for reasons of non-compliance (Prenzler, Earle, & Sarre, 2009).

Undoubtedly, serious questions of law arise regarding the role of private security agents and their officers in protecting individuals and private property. Naturally, it is very difficult for the common Australian to distinguish between private security officers and their counterparts in the police force. This is so because both units share certain commonalities, especially in their dressing, which makes it hard to distinguish one from the other. Unfortunately, the situation is even more confusing, where police training manuals do not differentiate between private security and public law enforcement agents (Van Steden & Sarre, 2007). In fact, in some jurisdictions, the former professionals pretend to exercise powers that they do not even have. For example, the South Australian Commercial and Private Agents Act 1986 that was operationalized in 1989 states that a license issued under the Act does not give private police agents or their officers powers to act in contravention of the established laws (Prenzler & Sarre, 1999; Sarre & Prenzler, 2005). Furthermore, the Act categorically states that private security agents and officers that purport to have the authority that they do not have shall be guilty of an offense under the Act (Sarre & Prenzler, 2005). Unfortunately, these legal prohibitions do not help to solve matters of the law regarding the functionality of private security agents and their officers.

The Law and Private Policing

In the Australian context, the two main areas where the law applies to private security agents are the laws of contract and property (Prenzler & Sarre, 1999). Regarding the former, this is where the officers derive their power and right to act as representatives of their principals. This right gives them the power to act on behalf of their clients in maintaining peace and order in their respective contexts. One of the powers that private security agents derive as a result of this law is that of searching individuals and their belongings (Prenzler & Sarre, 1999). Unfortunately, officers employed by these agents face accusations of going beyond the scope of their powers. For example, in Robinson v. Balmain Ferry [1910] A. C. 295, Robinson had been temporarily detained by private security officers manning the ferry after failing to pay the ticket (Lunney, 2009). Apparently, Robinson had missed his ferry and, therefore, decided to return via the turnstiles. However, to do so, he had to pay another fare to which he objected. This resulted in his apprehension and temporary detention by the officers. In the ruling, the court said that failing to pay fare did not warrant the use of force by the officers in restraining Robinson. Unfortunately for Robinson, the ferry company was protected by common law against civil suit as it was determined that he was legitimately blocked from leaving for failing to pay his passenger fees.

With regard to the law of property, private security agents are increasingly being employed to provide security to private property in Australia. In fact, in South Australia, legal statutes have been created to give private property owners the right to protect their properties. The amendment to the Criminal Law Consolidation Act 1935, which was adopted in December 1991, is a good example of the liberty (Prenzler & Sarre, 1999; Sarre & Prenzler, 2005). In this regard, the legal change allowed individual or property owner to defend themselves against unwarranted and unjustifiable interference or trespass. Unfortunately, incidences of the use of excessive force or the abuse of individual rights by property owners have been recorded. For example, in Hackshaw v. Shaw [1984] 155 CLR 614, Shaw, a property owner, was accused of firing at and shooting Hacksaw in an incident at Shaw’s farm (Doyles Construction Lawyers, 2007). Apparently, the victim was responsible for stealing petrol from the farm and, in an attempt to stop the robbers, the owner fired at the car in which the sufferer and a friend, Cox, were driving. In its ruling, the Australian High Court directed Shaw to compensate Hacksaw for the sustained injuries, arguing that the occurrence of injuries was justifiably foreseeable.

Accountability

While public police agents are accountable to the state and the public regarding the actions of their officers, there seems to be a lack of accountability on the part of the private security sector (Mulgan, 2000). Some sections suggest that market forces that regulate the sector constitute mechanisms of accountability, where poor performers are ejected out by stiff competition (Forrer, Kee, Newcomer, & Boyer, 2010). For example, Thurnher (2008) and Davis et al. (2003) observe that private security agents in countries, such as the United States, owe a duty of care to their principals regarding the actions of their officers. In Australia, unfortunately, private security agents seem to lack accountability frameworks as far as the use of excessive force and abuse of individual rights by their officers is concerned (Stenning, 2000). The only way that accountability applies to private security agents is when individuals who have suffered at the hands of security officers file for civil suits.

Conclusion

A sense of security is fundamental in any society as it gives people hope and peace of mind in their everyday engagements. Naturally, governments are responsible for maintaining peace and order in society. However, as the world changes and as new emergent forces that threaten individual and collective peace emerges, the need for assured protection increases among the people. This is what that has led to the creation of private security agents all over the world to enhance a sense of security. However, as these agencies continue to spring up, the issue of accountability becomes more problematic. While the public police agencies are accountable to the state and the public, private security agencies are not. The situation has created some real concerns, for example, in Australia, where private security is now a common feature. As officers employed by the agents seek to enforce their duties, more often than not, they trample upon individual rights. Unfortunately, private security agencies seem to lack any form of accountability in Australia as far as the actions of their officers are concerned. In fact, the only accountability measures are civil litigations brought against private security agencies by individuals and groups or criminal suits against specific private security officers often instituted by the police.

References

Abrahamsen, R., & Williams, M. C. (2007). Securing the city: private security companies and non-state authority in global governance. International relations, 21(2), 237-253.

Davis, R. C., Ortiz, C. W., Dadush, S., Irish, J., Alvarado, A., & Davis, D. (2003). The public accountability of private police: Lessons from New York, Johannesburg, and Mexico City. Policing & Society, 13(2), 197-210.

De Waard, J. (1999). The private security industry in international perspective. European Journal on Criminal Policy and Research, 7(2), 143-174.

Doyles Construction Lawyers (2007). Hackshaw v. Shaw [1984] 155 CLR 614. Retrieved from http://www.doylesconstructionlawyers.com.au/public/casewatch/HACKSHAW_V._SHA W_[1984]_155_CLR_614.pdf

Forrer, J., Kee, J. E., Newcomer, K. E., & Boyer, E. (2010). Public–private partnerships and the public accountability question. Public Administration Review, 70(3), 475-484.

Lunney, M. (2009). False Imprisonment, fare dodging and federation-Mr. Robertson’s evening out. Sydney L. Rev., 31, 537.

Mehra, A. (2009). Bridging accountability gaps-the proliferation of private military and security companies and ensuring accountability for human rights violations. Pac. McGeorge Global Bus. & Dev. LJ, 22, 323.

Mulgan, R. (2000). Comparing accountability in the public and private sectors. Australian Journal of Public Administration, 59(1), 87-97.

Noaks, L. (2000). Private cops on the block: a review of the role of private security in residential communities. Policing and Society: An International Journal, 10(2), 143-161.

Prenzler, T., & Sarre, R. (1999). A survey of security legislation and regulatory strategies in Australia. Security Journal, 12(3), 7-17.

Prenzler, T., Earle, K., & Sarre, R. T. (2009). Private security in Australia: Trends and key characteristics. Trends & Issues in Crime and Criminal Justice, (374), 1-6.

Sarre, R., & Prenzler, T. J. (2005). The law of private security in Australia. Rozelle, NSW: Thomson Lawbook Co.

Shearing, C. D., & Stenning, P. C. (1981). Modern private security: its growth and implications. Crime and Justice, 193-245.

Stenning, P. C. (2000). Powers and accountability of private police. European Journal on Criminal Policy and Research, 8(3), 325-352.

Thurnher, J. S. (2008). Drowning in Blackwater: How weak accountability over private security contractors significantly undermines counterinsurgency efforts. Army Lawyer, 64.

Van Steden, R., & Sarre, R. (2007). The growth of private security: Trends in the European Union. Security Journal, 20(4), 222-235.