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Private investigators are one of the most heavily regulated industries in Australia. There are onerous laws setting out who can become a private investigator, what they are allowed to do and what actions are illegal.  

If you are considering hiring a private investigator for your case, you should speak to a specialist criminal lawyer to see what they can and can’t assist you with.

What is a Private Investigator?

A private investigator (PI) is a licensed professional hired by individuals, businesses, or legal teams to gather information, conduct surveillance, and collect evidence which can assist a case.

Their role can involve background checks, locating witnesses through skip tracing and uncovering evidence.

Are Private Investigators Legal?

Private investigators are legal in Australia. However, a private investigator must be licenced under state or territory security industry legislation, such as a Security Licence issued by Police. In NSW, this would be a Class 2E Security Licence issued by NSW Police.

Further, private investigators must comply with laws just as a regular citizen does. They do not have any exemptions or special authority and are not police officers.

What Can Private Investigators Legally Do in Australia?

A private investigator can legally conduct skip tracing to locate people such as witnesses or defendants who are attempting to evade detection. They can also conduct background checks and check personal details.

They are allowed to follow people and can sometimes video record them. This is often used when a business is investigating their employees or a souse suspects infidelity.

They can also collect evidence that they locate. If they follow chain of custody procedures then this evidence can be used in legal cases.

What Can’t Private Investigators Do?

Private investigators cannot arrest people or employ physical force in the course of their duties. They are not police officers and cannot tell people that they are police officers.

They also cannot carry prohibited weapons, firearms, tasers, or pepper spray during their investigations.

They must obey surveillance laws of Australia. For example, the Surveillance Devices Act 2007 in NSW imposes strict rules on the use of listening, optical, tracking, and data surveillance devices. Under Section 7 of the Act, a private investigator cannot secretly record a conversation. Under Section 8 of the Act, they cannot video record a person without the consent of the owner or occupier of the premises.

Can you use a Private Investigators in an Apprehended Violence Orders (AVOs)

You cannot personally hire a private investigator to follow the person in need of protection (PINOP) if you are subject to an AVO or ADVO. This is because it is considered stalking which would be a breach of AVO offence, carrying a maximum penalty of 2 years imprisonment.

Hiring a private investigator to stalk or harass another person can result in you being charged with an offence of stalking or intimidation under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

If there is some forensic benefit to following the PINOP, then an AVO lawyer will need to retain the private investigator and instruct them to only obtain evidence or information relevant to the case. This will prevent you from being charged with any offences.

Private Investigators for Sexual Assault

Private investigators can be used in sexual assault cases to obtain evidence or information to support a case.  

However, it is important to ensure that they are instructed by a specialist sexual assault lawyer so that their use does not infringe on any laws or compromise the case.

Private investigators are regularly used in sexual assault cases to collate social media posts, videos, locate witnesses and perform background checks.

Who Can Hire a Private Investigator?

Anyone can hire a private investigator. The only exception to this is if they are using the PI to commit crimes or get around an AVO.

Can You Sue Someone for Hiring a Private Investigator?

You can sue someone for hiring a private investigator if they engage in illegal or improper techniques which result in some sort of loss to you. This loss can be financial or emotional. For example, if you have a mental health condition which is exacerbated by being stalked by a PI, you may be able to claim some damages.

Do Private Investigators Work with Police?

In Australia, private investigators do not work with police. This is because there are strict rules relating to the chain of custody of evidence as well as significant differences between police powers and regulations compared to private investigators.

However, criminal defence lawyers regularly use private investigators to find evidence and locate witnesses who may assist their client’s case. This can be a particularly helpful tool when dealing with cases where evidence is difficult to locate.

How to Become a Private Investigator

You can become a private investigator by obtaining the required licence under your local state authority. The only exception to this is the Australian Capital Territory.

In NSW, you must obtain a Class 2E Security Licence to be a private investigator. These are issued by NSW Police under the Security Industry Act 1997 (NSW). A “private investigator” is defined in the Act as a person who:

• Investigates a person’s whereabouts, business, or personal affairs on behalf of another party (excluding their employer);
• Conducts surveillance on a third person on behalf of another party (excluding their employer).

Before applying for a Class 2E security licence, you will need to complete a CPP30619 Certificate III in Investigative Services. Applications can be made online.

Private investigators are regulated by the Security Licensing Enforcement Directorate (SLED).

Can you Become a Private Investigator Without a License? | Penalties for Illegal Private Investigators in NSW

It is a criminal offence to conduct private investigations without a licence. Under section 7(2) of the Security Industry Act 1997 (NSW) a person who carries out private investigation activities without a licence is liable to a maximum penalty of a $55,000 fine and/or 2 years gaol.

Who Cannot Become a Private Investigator?

The Security Industry Act 1997 (NSW) states that you cannot be a private investigator if you:

• Are not an Australian citizen or do not have an acceptable visa;
• are a registrable person pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW);
• are under the age of 18;
• Provides false or misleading information on the application;
• Do not meet fitness, competency, or training requirements.

You can also be refused a private investigator licence if it is not in the public interest or if police have internal information about you. Often former police officers will be refused security licences if there is a conflict of interest. There are similar rules in other States.

Private Investigators in Northern Territory

In the Northern Territory, private investigators are licenced through the Local Court pursuant the Commercial and Private Agents Licensing Act 1979 (NT). There is no mandatory training requirement in the Northern Territory, however, you must be 18 years of age or older, you cannot be a bankrupt, and the Court can refuse you if they find you are not a fit and proper person.

Private Investigators in Queensland

In Queensland, private investigators are licenced by the Office of Fair Trading under the Security Providers Act 1993 (Qld). You must complete an approved training course and be 18 years of age or older. The Office of Fair Trading retains the ability to refuse to issue a licence if they deem you not to be a fit and proper person.

Private Investigators in South Australia

In South Australia, the Office of Consumer & Business Affairs issues private investigator licences. Pursuant to the Security and Investigation Agents Act 1995 (SA), you must be 18 or older and hold a Certificate III in Investigative Services to be eligible.

Private Investigators in Tasmania

In Tasmania, private investigator licences are governed by the Department of Justice. The relevant legislation is the Security and Investigations Agents Act 2002 (Tas) which mandates that successful applicants must pass a background check, have attained a Certificate III in Investigative Services and are at least 18 years of age.  

Private Investigators in Victoria

In Victoria, private investigator licences are issued by Victoria Police pursuant to the Private Security Act 2004 (Vic). You have successfully obtained a Certificate III in Investigative Services, pass a background check and pass a police check. You can still be refused a licence is you do not pass a fit and proper person test.

Private Investigators in Western Australia

In Western Australia private investigators are licenced through WA Police Service. The governing Act is the Security and Related Activities (Control) Act 1996(WA). Western Australia issues an Inquiry Agent Licence and Investigator Licence. An inquiry agent is a person who engages in the management of investigations but does not necessarily conduct the investigation themselves, while an investigator is the person who actual conduct private investigations.