Defence (Contracted defence security guard—training and qualification requirements) Determination 2023

EXPLANATORY STATEMENT

Issued by authority of the Assistant Minister for Defence, Parliamentary Secretary to the Minister for Defence

Defence Act 1903

Defence (Contracted defence security guard—training and qualification requirements) Determination 2023

The instrument is made under subsection 71B(4) of the Defence Act 1903 (the Act). The instrument commences on the day after the instrument is registered and is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).

Purpose

The Act prescribes the control, administration, constitution and service of the Australian Defence Force. The purpose of Part VIA of the Act is to enhance the security of defence bases, facilities, assets, and personnel within Australia in response to the changing nature of security threats. To achieve this purpose, Division 3 of Part VIA of the Act sets out powers that are exercisable with consent by a ‘defence security official’ at ‘defence access control points’ and on ‘defence premises’. Under the Act, a ‘defence security official’ is defined to mean the following personnel:

• contracted defence security guard
• defence security screening employee
• security authorised members of the Defence Force

The powers exercisable by a ‘defence security official’ include, but are not limited to, things such as being able to request a person to provide identification (subsection71H(1)) or requesting a person to permit a limited search of their vehicle, vessel or aircraft (subsection71J(1)).

In order to exercise the powers set out in Division 3 of Part VIA of the Act, a person must be a ‘defence security official’. This means a person must be one of the types of personnel set out in the definition of ‘defence security official’. For a person to be a ‘contracted defence security guard’, the person must meet the requirements set out in subsection 71B(1) of the Act. Relevantly, these requirements include that:

• a person is a party to a contract with the Commonwealth or a Commonwealth entity (or an employee of the contractor)
• a person is a subcontractor for a contract with the Commonwealth or a Commonwealth entity (or an employee of the subcontractor)
• the contract is for, or includes, the provision of security services at one or more defence premises
• a person is authorised or part of a class of persons authorised under subsection 71B(2) of the Act
• a person satisfies the training and qualification requirements determined under subsection 71B(4) of the Act

Subsection 71B(4) of the Act sets out that the Minister must determine, by legislative instrument, the training and qualification requirements for a ‘contracted defence security guard’.

The purpose of the instrument is to determine the training and qualification requirements that a person must satisfy (among other requirements) in order to be a ‘contracted defence security guard’. Setting out training and qualification requirements that a person must satisfy prior to becoming a ‘contracted defence security guard’ ensures there are appropriate checks and balances in place on the safe exercise of powers under the Act. It also ensures that a ‘contracted defence security guard’ is reasonably and appropriately qualified and trained to perform their security functions on Defence premises.

The instrument repeals the Defence (Contracted Defence Security Guards—Training and Qualification Requirements) Determination 2013.

Details of the instrument

Details of the instrument are set out in Attachment A.

Consultation

Consultation was previously undertaken with the Australian Federal Police (AFP) throughout the development of the training regime.  The AFP were represented at trials, training workshops and working groups. Further consultation was not undertaken for the instrument, as the measures contained in the instrument do not diverge from those previously in force.

The Office of Impact Analysis was consulted in relation to the instrument and confirmed that a regulation impact analysis was not required for the instrument (OIA23-05232).

Parliamentary scrutiny

The instrument is subject to disallowance under section 42 of the Legislation Act.

A Statement of Compatibility with Human Rights has been prepared in accordance with subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement provides that the instrument is compatible with human rights because it promotes the protection of human rights, and to the extent that it may limit human rights, those limitations are necessary, reasonable and proportionate for the purposes of defence and national security. The Statement is included at Attachment B.

The instrument is made by the Assistant Minister for Defence, Parliamentary Secretary to the Minister for Defence, in accordance with the requirements of subsection 71B(4) of the Act.

Attachment A

Details of the Defence (Contracted defence security guard—training and qualification requirements) Determination 2023

Section 1 Name

This section provides that the name of the instrument is the Defence (Contracted defence security guard—training and qualification requirements) Determination 2023.

Section 2 Commencement

This section provides that the instrument commences on the day after the instrument is registered on the Federal Register of Legislation.

Section 3 Authority

This section provides that instrument is made under subsection 71B(4) of the Act. This provision provides that the Minister must, by legislative instrument, determine the training and qualification requirements for a contracted defence security guard.

Section 4 Training and qualification requirements

This section sets out the training and qualification requirements that a person must satisfy, among other things, to be a contracted defence security guard, as mentioned in subsection 71B(1) of the Act.

Subsection 4(2) of the instrument provides that a person must hold a Certificate II in Security Operations, or a higher qualification. A higher qualification would be if, for example, a person held a Certificate III in Security Operations. The Certificate II in Security Operations is regarded as an appropriate minimum training requirement as it:

• is a recognised qualification under the Australian Qualification Training Framework;
• provides a range of core and elective units suited to Defence’s requirements for security guarding services, including the expected breadth, depth and complexity of knowledge and skills of the individual in a defined workplace and team;
• is consistent with other Commonwealth requirements in security situations; and
• is the minimum qualification requirement for the award of an appropriate licence to operate as an unarmed security guard in some States and Territories.

A Training Needs Analysis previously undertaken by Defence confirmed that completion of the Certificate II in Security Operations provides the necessary skills and procedural techniques necessary to exercise the statutory powers available to contracted defence security guards under the Act. If a person does not hold a Certificate II in Security Operations, a person must hold a current qualification that, in the view of the Minister or their delegate, is equivalent to a Certificate II in Security Operations. For example, a Certificate III in Close Protection Operations may be considered as equivalent to a Certificate II in Security Operations, due to the similarity in the qualifications.

Subsection 4(3) of the instrument provides that a person must possess a current licence to operate as a security guard in the State or Territory in which they are, or may be, employed on Defence premises. The purpose of this provision is to fulfil State and Territory legislative requirements for the licensing of private security guards.

Paragraph 4(4)(a) of the instrument provides that a person must have successfully completed training that is designed to make the person competent in exercising the statutory powers of a ‘defence security official’ under the Act. These competencies may be undertaken as part of the Certificate II in Security Operations and are not necessarily competencies that must be undertaken in addition to this qualification. These competencies include:

• screening people: the purpose of this competency is to ensure a contracted defence security guard can use screening equipment to assist them to screen people. The training for this competency should include training on the preparation and use of screening equipment, monitoring of people and alarms and carrying out searches of persons and their personal effects. It may also involve development of the knowledge of legal issues relevant to the rights and responsibilities of persons involved in search actions (subparagraph 4(4)(a)(i));

• screening items: the purpose of this competency is to ensure a contracted defence security guard can use screening equipment to assist them to screen dangerous or prohibited items. The training for this competency should include learning how to operate security screening equipment and how to accurately interpret images to detect prohibited and dangerous items (subparagraph 4(4)(a)(ii));

• controlling access to and exit from premises: the purpose of this competency is to ensure a contracted defence security guard can monitor and manage the entry and exit of persons and vehicles from Defence premises. The training for this competency should include the ability to manage people, inspect items and vehicles and manage vehicular traffic; and

• basic defensive techniques: the purpose of this competency is to ensure a contracted defence security guard can use basic lawful defensive techniques to protect themselves or others in a security risk situation. The training for this competency should include the use of basic negotiation techniques to defuse conflict as well as the identification of potential risk factors that might impact on the safety and security of themselves and others and the implementation of appropriate response measures.

Paragraph 4(4)(b) of the instrument provides that a person must have also successfully completed training that is designed to give them familiarity with certain matters, including:

• relevant Commonwealth, State and Territory legislation;
• the security policies and protocols of the Department;
• other matters relevant to the security of the Department;
• the policing arrangements used by the Defence Force; and
•  the security alert system used by the Department.

The purpose of this additional training is to ensure that a person develops their knowledge and understanding of the role and responsibility of a contracted defence security guard within the Defence organisation, including their knowledge regarding the safe and lawful exercise of the powers of a contracted defence security guard under the Act.

Subsection 4(5) of the instrument provides that, each year after completing the training mentioned in subsection 4(4), the person must undertake and complete training designed to refresh or update their knowledge needed to perform their duties. This ensures that the knowledge and skills required for the person to perform their role as a contracted defence security guard remains relevant.

Subsection 4(6) of the instrument provides that a person must hold certain qualifications in order to be a contracted defence security guard. These include a current qualification or competency in first aid, a current driver’s license (other than a suspended license) and a current security clearance issued or recognised in accordance with the Department’s security policy. The purpose of these qualification requirements is to ensure that a person can discharge the functions of a contracted defence security guard, which may require, among other things, performing first aid in an emergency, driving vehicles on defence premises and maintaining sensitive knowledge of Defence security procedures.

Schedule 1 Repeals

Schedule 1 of the instrument repeals the Defence (Contracted Defence Security Guards—Training and Qualification Requirements) Determination 2013. Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Defence (Contracted defence security guard—training and qualification requirements) Determination 2023

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

The Disallowable Legislative Instrument sets out the training and qualification requirements a person must satisfy, among other things, in order to be a ‘contracted defence security guard’.

The Defence Act 1903 (the Act) prescribes the control, administration, constitution and service of the Australian Defence Force. Specifically, Part VIA of the Act enhances the security of Defence bases, facilities, assets, and personnel within Australia in response to the changing nature of security threats. To achieve this purpose, Part VIA sets out powers in the Act that are exercisable by either a ‘defence security official’ or a ‘special defence security official’ at ‘defence access control points’ and on ‘defence premises’.

Under the Act, a ‘defence security official’ is defined to mean the following personnel:

• contracted defence security guard
• defence security screening employee
• security authorised members of the Defence Force

In order to exercise the powers set out in Part VIA of the Act, a person must one of the types of personnel mentioned in the definition of ‘defence security official’ (or ‘special defence security official’). For a person to be a ‘contracted defence security guard’, the person must meet the requirements of subsection 71B(1) of the Act. Relevantly, these requirements include, among other things, that a person satisfies the training and qualification requirements determined under subsection 71B(4) of the Act. Under subsection 71B(4) of the Act, the Minister is required to determine, by legislative instrument, the training and qualification requirements for a ‘contracted defence security guard’.

The Disallowable Legislative Instrument repealed the existing legislative instrument made for subsection 71B(4) of the Act; the Defence (Contracted Defence Security Guards—Training and Qualification Requirements) Determination 2013 (F2013L01719).

Human rights implications

This Disallowable Legislative Instrument engages the following rights:

• The right to work, including technical and vocational guidance and training programs, policies and techniques to achieve development and employment under conditions safeguarding individual freedom, per Article 6(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
• The right to just and favourable conditions of work, including safe and healthy working conditions, per Article 7(b) of the ICESCR

The right to work—including technical and vocational guidance and training programs etc.

The Disallowable Legislative Instrument engages and promotes the right to work through the provision of vocational guidance and training setting out the formal training and qualification requirements that a contracted defence security guard must satisfy to be eligible to undertake the role. A Training Needs Analysis was conducted to determine the nature of competencies to be included in Defence’s training to meet the practical and operational requirements contemplated by the role.

The right to just and favourable conditions of work, including safe and healthy working conditions

The Disallowable Legislative Instrument engages and promotes safe and healthy work conditions and environment, as it gives effect to Government initiatives to enhance the security of Defence premises and Defence personnel.

The training and qualification requirements set out in the instrument will positively contribute to safe and healthy working conditions for Defence personnel by ensuring that a contracted defence security guard can provide effective security to defence premises and personnel. The training and qualification requirements set out in the instrument are aimed at ensuring contracted defence security guards are professionally skilled, knowledgeable and capable of providing security services to defence premises. This is provided for by the requirement for contracted defence security guards to be satisfactorily trained in relevant matters, including but not limited to, being able to use basic defensive techniques to protect themselves and others.

Additionally, the instrument promotes safe and healthy working conditions by requiring contracted defence security guards to hold certain qualifications as part of their role, which notably includes requiring them to hold a current qualification in first aid. Accordingly, a contracted defence security guard who meets the training and qualification framework set out under the instrument will positively contribute to the safe and healthy working conditions of Defence premises and personnel.

Conclusion

The Disallowable Legislative Instrument is compatible with human rights because, to the extent it engages human rights, it promotes the protection of human rights.