In this multi-part series, security consultant David Horsburgh CPP PSP PCI examines some of the misconceptions around the use of covert CCTV, showing how statutes and case law identify best practice. This second instalment focuses on the applicability of the Private Investigators’ Code of Conduct to the installation of covert CCTV.
The chief executive of a retail organisation with its head office in Auckland and outlets throughout the country has received information that his Wellington manager is entering the Wellington store during weekends to steal large quantities of company stock.
The chief executive engages a private investigation company to install covert CCTV cameras in the Wellington store to assist in the investigation. This article contends that such an installation may be unlawful.
The New Zealand security industry is regulated by the Private Security Personnel and Private Investigators Act 2010. Section 115 of that Act empowers the Governor-General to create a code of conduct for different classes of private security businesses and employees.
In 2011, a Code of Conduct was created for private investigators, restricting their use of surveillance devices.
Under the Code, two types of buildings are specified: Private Dwelling and Private Property. The rules governing the use of surveillance devices by private investigators differ between these two building categories:
Private Dwelling
- A private dwelling is a building used as a residence and includes a garage, shed or other building connected with a residence.
- A private dwelling does not include a verandah, patio, decking, other enclosed structure or outdoor area around the residence.
- A private dwelling does not include part of a residence used exclusively for business purposes.
- A private investigator may only undertake surveillance in a private dwelling if every lawful occupier has consented to the surveillance.
- A private investigator may undertake surveillance of a private dwelling from a public place without consent but the investigator cannot use any surveillance equipment
Private Property
Private property means any property or part of any property that, at the material time, the public do not have a general license to enter.
- Private property excludes a private dwelling.
- A private investigator may only undertake surveillance in or on a private property if every lawful occupier has consented to the surveillance.
- A private investigator may undertake surveillance of a private property from a public place without consent and the investigator may use surveillance equipment.
- However, the surveillance equipment can only be used if the activity can be observed from the public place without the aid of any such surveillance equipment.
The following table illustrates when surveillance equipment may be installed or used by a private investigator and when the use of such equipment is prohibited:
|
Surveillance Equipment Use |
Dwelling |
Private Property |
| Install / use surveillance equipment with the permission of every lawful occupier |
Yes |
Yes |
| Install / use surveillance equipment with the permission of some lawful occupiers |
No |
No |
| View activity inside building from a public place without consent and without using surveillance equipment |
Yes |
Yes |
| Use surveillance equipment to view and/or record activity inside building from a public place without consent |
No |
Yes (See Note 1) |
| Use of surveillance equipment from a public place without consent to view and/or record activity in the grounds around a building |
Yes |
Yes |
[Note 1: Surveillance equipment may be used without consent but only if the activity can be observed with the unaided human eye. This appears to restrict the use of long focal length lenses or binoculars to see activity within private property that is not clearly visible to the human eye.]
Enjoying this article? Consider a subscription to the print edition of New Zealand Security Magazine.
Lawful Occupier
The Code of Conduct does not define the term “lawful occupier”. The Ministry of Justice has indicated that the term may include a property owner, leaseholder or employer. However, case law indicates the expression may also include company directors and employees who, in the course of their employment, exercise significant control over the work environment.
Such persons might include members of the C Suite, such as chief executive officer, chief information officer, chief financial officer, and chief operating officer. Depending on the specific work environment the term might include managers and assistant managers.
The Court of Appeal case Polly v Police (1984) [1 NZLR 443] provides some assistance on establishing a meaning of the wording. This case involved the arrest of a person for willful trespass who had refused to leave a Wellington hotel after being warned to do so by the hotel’s assistant manager.
The grounds for appeal included whether the assistant manager had authority to trespass the person. The Court held that the assistant manager was, at the relevant time, the person in control of the premises and, as such, the assistant manager was in lawful occupation.
In delivering the judgement, McMullin J stated (at p. 448), “Persons of managerial rank or executive status in the employ of a corporation should be treated as being in lawful occupation of the premises which the corporation holds as owner, lessee, or under other form of tenure.”
Security License Categories
Within the security industry, companies and individuals frequently carry multiple licenses, such as private investigator, security consultant, and security technician. Each category provides authority to undertake different types of security work.
A security technician is authorised to install cameras for the purpose of detecting the commission of offences, but this category of license is not subject to the Code of Conduct for Private Investigators.
Some security operators who hold both private investigator and security technician licenses have, in the past, switched their status, asserting that they are operating as security technicians while installing cameras rather than as private investigators so as to avoid the Code of Conduct provisions. It is argued that this practice does not enable a licensed private investigator to elude the Code.
The practice of ‘changing hats’ was examined in the case Dieter Ravnjak v Wellington International Airport Limited (2011) [NZEmpC 31 WRC 12/1].
Although the case related to alleged breaches of section 52 of the former Private Investigators and Security Guards Act 1974, which prohibited private investigators from taking any photograph or videotape recording without consent, it is argued that the decision is relevant to provisions within the newer Private Security Personnel and Private Investigators Act 2010.
In this case, the camera installer was licensed both as a private investigator and as a security guard. He claimed that when he installed the camera he was carrying out his duties as a security guard and was therefore not in breach of section 52.
Chief Employment Court Judge Colgan held that the purpose for installing the CCTV camera was to assist in an investigation and the installer was fulfilling his role as a private investigator. The court held that the camera installation was unlawful.
It is therefore argued that if the installation of video surveillance equipment is undertaken directly by a private investigator or is facilitated by him, the code of conduct will apply.
The Code of Conduct regulates the use of surveillance devices by private investigators. If the Code is breached, the video evidence may be ruled inadmissible and the private investigator may be sanctioned.
If a private investigator is engaged by a client to facilitate the installation of CCTV equipment, it would be prudent for that investigator to ensure every lawful occupier of the premises has consented. In reference to the example quoted at the start of this article, it is contended that the installation of surveillance equipment by the investigator, without the consent of the site manager, may be in breach of the Code of Conduct.
