How and when should law firms work with private investigators?

Still, the engagement of licensed private investigators is legal and practical in Australia when carried out in compliance with national, state, and territory laws. In New South Wales, the Surveillance Devices Act 2007 (NSW) restricts and regulates the use of surveillance tools and techniques, including the necessity of authorisation for recordings, their communication and publication.

Rhian Bartley, Director and Principal Lawyer, Bartley Legal, says, “When it comes to building a strong criminal defence in NSW, private investigators are one of the most underutilised tools available to defence lawyers.”

Bartley Legal is a NSW criminal defence firm that engages licensed private investigators in serious criminal matters to, as Bartley explains, “Tell the judge, the jury and the court the full story.”

Legally, private investigators (PIs) can assist in verifying personal information through background checks, locating missing persons (including witnesses, debtors, or suspects), investigations of misconduct, fraud, or infidelity, and collecting evidence for use in civil and criminal cases. Frequently, PIs have been drawn to the career following experience in law enforcement and have a comprehensive understanding of the restrictions upon their practice. PIs face criminal penalties if they impersonate police or imply that they are conducting work in any capacity as law enforcement (i.e. sheriffs or lawyers). Like ordinary citizens, PIs cannot use force, including firearms, tasers, or capsicum spray, and they are subject to the same laws over stalking, harassment, making threats, or the use of unauthorised tracking devices, as the general population.

Factors that would justify engaging a PI

It’s a matter of what’s needed to build the strongest possible defence for the client, according to Bartley.

“There’s a wide range of reasons why you might bring a PI on board, and it’s very much a case-by-case decision,” she says. “Sometimes it comes down to credibility. If a complainant’s version of events doesn’t quite add up, a PI can do the legwork to uncover the inconsistencies, contradictions, and weaknesses in the prosecution’s case that you can then use to your advantage.”

Perhaps crucial witnesses are proving difficult to locate.

Bartley says, “Maybe they’re interstate, maybe they’ve moved overseas, and that’s where a PI’s experience, contacts and investigative toolkit really comes into its own. In more complex matters like fraud or white-collar crime in NSW, you might engage a licensed private investigator to trace assets, map out corporate structures, or dig up documentary evidence that just isn’t going to surface through the standard disclosure process.”

As Bartley explains, all private investigators in NSW are required to hold a licence under the Security Industry Act 1997 (NSW). “Beyond the licence itself, it’s about experience and [being] fit for the specific task. Someone with a background in law enforcement who has handled similar briefs, a clean professional history and a clear understanding of the legal boundaries they’re operating within, particularly around surveillance, obtaining statements and evidence handling.”

Getting that brief right is critical, she emphasises, “because a PI who steps outside lawful methods doesn’t just waste your client’s money, they can actively damage the defence case.”

In one past matter involving serious criminal charges in NSW, Bartley recalls that a witness came forward who wanted to support their client’s version of events. Rather than approaching that witness directly, her firm engaged a PI to conduct a formal interview and take a statement.

“That statement was ultimately tendered at trial and carried real weight with the jury in terms of giving our client’s account credibility. The matter resolved with a not guilty verdict, and the PI’s work was a significant contributing factor in getting there,” she says.

In a separate matter, a Bartley Legal client faced a potential life sentence.

“We engaged a PI to speak with a witness,” she explains. “The PI’s observations identified a number of clear inconsistencies between what the complainant said during that interaction and the version she had given to police. The PI prepared a written statement documenting those inconsistencies, which we tendered at trial. Again, the jury found in our client’s favour.”

New NSW legislation to prevent the misuse and abuse of surveillance in domestic violence situations

Last month, the NSW government brought in new legislation to ban private GPS monitoring in view of its misuse in domestic violence/coercive control situations.

Premier of NSW, Chris Minns said, “The truth is technology is being weaponised against women, and our laws have not kept pace. These reforms change that. For the first time, covert stalking through tracking devices will be a criminal offence, giving police the powers they need to intervene and crack down.”

The government and police also reported that the use of private investigators to track victims, unwittingly, was also of concern.

A defendant’s engagement of a PI could amount to an offence in certain circumstances. Bartley says it could contravene an AVO under s 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) if the defendant knowingly contravenes a prohibition or restriction in the AVO. It may also constitute stalking or intimidation under s 13. There could also be offences under the Surveillance Devices Act 2007 (NSW) if GPS trackers, listening devices, optical devices or data surveillance are used. The private investigator could also be held liable, depending on their knowledge and participation. Bartley points out that PIs are heavily regulated under the Security Industry Act 1997 (NSW).

In NSW, section 4A of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the court to impose on an offender an imprisonment or supervised order penalty for committing a domestic violence offence.

Licensing requirements for private investigators

Except for the ACT, every Australian jurisdiction requires that a PI be licensed by an appropriate authority.

In NSW, PIs are regulated by the Security Licensing Enforcement Directorate (SLED).

In NSW, Class 2E Security Licences (or “private investigator licences”) are issued by NSW Police under the Security Industry Act 1997 (NSW). Under the Act, a “private investigator” refers to an individual employed or engaged to perform either or both of the following activities:

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

Applicants must meet some basic requirements to be eligible for a Class 2E security licence, including, at a minimum, the successful completion of a CPP30619 Certificate III in Investigative Services from an approved accrediting body. An application can be made online. A Master security licence authorises the holder to provide a specified number of licensed investigators on any one or more days to conduct security work.

According to the Security Industry Act 1997 (NSW), police must refuse an application for a private investigator licence if the applicant:

• Is under 18;
• Is a registrable person under child protection laws;
• Provides false or misleading information;
• Does not hold Australian citizenship, permanent residency or the appropriate visa status;
• Fails to meet fitness, competency, or training requirements.

Further, if the authorities deem that the licence conflicts with public interest or if criminal intelligence raises concerns about improper conduct, the applicant may be denied a licence on a discretionary basis. Former police officers may also be denied a licence if it creates a conflict of interest, although conditional approval may be granted to avoid conflicts.

These criteria differ only slightly across Australian jurisdictions.

Cases of note

Bartley says that of the recent history of PI use in the law, the standout leading authority is Kadir v The Queen; Grech v The Queen [2020] HCA 1.

“It’s genuinely worth the read,” she assures.

“The surveillance footage collected and relied upon by the prosecution was ruled inadmissible under section 138 of the Evidence Act 1995 (NSW) because it had been obtained unlawfully, in breach of the Surveillance Devices Act 2007 (NSW).”

The investigator had deliberately installed and used optical surveillance devices on private premises without the knowledge or consent of the occupier, and “that was fatal to the evidence. Didn’t matter how compelling the footage was, it was gone,” says Bartley.

She also points to Higgins v Regina [2007] NSWCCA 56, “which provides really useful guidance on the evidence a PI can gather through conversation, particularly where an admission is made during the course of a criminal investigation in NSW.”

What the case confirms is that a licensed private investigator is not required to administer a caution before an interview or conversation in the way police are, and that an admission or other incriminating information that comes out of that exchange is not rendered inadmissible simply because no caution was given.  

Fit for purpose? Current licensing requirements and laws regarding privacy and surveillance

Bartley says that as a criminal lawyer, a former police officer, and a person with friends, family members, clients and complainants who have shared their experiences, she takes a nuanced view.

“I’ve seen firsthand how devastating it can be when surveillance technology is weaponised by a controlling or abusive ex-partner. That kind of stalking, and let’s call it what it is, can be made significantly easier when a PI is engaged to do the legwork, and I absolutely do not condone the use of surveillance devices for that purpose under any circumstances.”

The Minns government’s proposed legislation is welcome, she says.

“It signals that lawmakers are catching up to a reality that people on the ground, particularly women in dangerous domestic situations, have been living with for a long time.”

But whether it’s sufficient is a harder question.

“Licensing requirements and legislative frameworks are only as effective as their enforcement, and the reality is that a determined abuser with money can find ways around regulatory controls.”

What would make this kind of reform genuinely effective is not just restricting who can engage a PI but strengthening the obligations on the PI themselves to make proper inquiries about the purpose of any surveillance brief, and imposing real consequences when those obligations aren’t met, Bartley explains.

“The law can set the standard, but culture, training and accountability within the industry are what will actually move the needle.”