Using External Investigators in NSW and WA: Licensing, Scope and Regulator Expectations

When an organisation in New South Wales or Western Australia brings in an external investigator to handle a child-related allegation, licensing is not a side issue. It is a threshold compliance question. In both jurisdictions, a Reportable Conduct Scheme investigation still needs to be fair, timely and child-focused, but if the person conducting the work is an external commercial investigator, private investigator licensing requirements may also apply. For safeguarding leads, HR teams and executives, the practical task is to decide early whether the proposed investigator is genuinely internal, genuinely external, or operating in a way that triggers licensing obligations.

Why licensing matters in NSW and WA

In both NSW and WA, reportable conduct matters sit within a broader legal and regulatory framework. The organisation’s primary obligation is to respond properly to allegations involving workers or volunteers and to meet regulator reporting timeframes. But the choice of investigator can affect the legality, defensibility and credibility of the investigation process.

In NSW, the Reportable Conduct Scheme is established under the Children's Guardian Act 2019 and regulated by the Office of the Children’s Guardian (OCG). NSW is a mature, fully operational scheme. Initial notification is due within 7 business days, and the final report is due within 30 calendar days.

In WA, the scheme operates under the Parliamentary Commissioner Act 1971 and is overseen by Ombudsman WA. It commenced on 1 January 2023. Initial notification is due within 7 working days, and the final report is required on conclusion.

Separate from those reporting obligations, external investigators in NSW and WA may need to hold a private investigator licence under state security industry legislation. That means a decision to outsource cannot be left to procurement alone. It should be considered as part of the investigation planning process from the outset.

When external investigators trigger licensing requirements

A practical starting point is this: internal employees are generally treated differently from external commercial investigators.

In NSW, external investigators need a Class 2E (Private Investigator) licence under the Security Industry Act 1997 (NSW). Internal employees are exempt when they are acting within the scope of their employment. That distinction matters. If your organisation asks an HR manager, employee relations specialist or safeguarding officer to conduct an internal fact-finding process as part of their role, that will generally sit within the employee exemption. If, however, the organisation engages an outside consultant or investigation firm to conduct inquiries for fee or reward, licensing requirements are likely to be engaged.

In WA, external investigators must be licensed under the Security and Related Activities (Control) Act 1996. Again, the key operational distinction is between internal staff acting as employees and external providers offering investigative services commercially.

The harder cases are the borderline ones. For example:

• a consultant engaged on a short-term contract specifically to investigate misconduct allegations
• a labour-hire or secondee arrangement where the person is not clearly embedded as an employee for the relevant purpose
• a law firm or HR consultancy proposing to conduct witness interviews and make factual findings
• a multi-service provider offering “workplace review” services that, in substance, amount to investigation work.

In those situations, organisations should avoid assuming that a generic consultancy label removes licensing risk. The safer approach is to test the substance of the role: who employs the person, in what capacity they are acting, and whether they are providing investigation services externally for reward.

How the internal employee exemption differs from using an outsider

The internal employee exemption is not just about whether a person has a staff email address or an organisation-issued laptop. It turns on whether the person is genuinely acting within the ordinary scope of their employment.

In NSW, the brief position is clear: internal employees are exempt within employment scope. That means organisations should be cautious about stretching internal roles beyond their proper function and then describing the arrangement as “internal”. If the person is effectively being retained as an external specialist, the exemption may not fit.

The same practical caution applies in WA. If the work is being done by an employee as part of internal organisational processes, that is different from engaging an outside investigator or firm.

For governance purposes, organisations should document:

• why the matter is being handled internally or externally
• the investigator’s employment or engagement status
• whether any licence is required, and if so, how it has been verified
• why the investigator is suitable for a child-related matter.

This record becomes important if the regulator later asks how the organisation assured itself that the investigation was appropriately conducted.

What regulators expect beyond licensing

Holding the right licence, where required, is only one part of the picture. Regulators expect investigators to be appropriately qualified and capable of handling child-related matters with care.

A common benchmark is Certificate IV in Government Investigations, together with trauma-informed interviewing experience. That benchmark does not displace jurisdiction-specific legal requirements, but it is a useful operational standard when selecting an investigator.

For NSW matters, organisations should also keep in mind the OCG’s expectation that investigations be timely, fair and properly reasoned. In a reportable conduct matter, the standard applied is the civil standard of proof: the balance of probabilities, guided by the Briginshaw principle for serious allegations. Investigators do not apply the criminal standard.

For WA matters, Ombudsman WA will similarly expect a sound process, proper analysis and a final report capable of explaining what was alleged, what inquiries were made, what evidence was considered, and what findings were reached.

Across both jurisdictions, regulators will usually expect investigators to be able to demonstrate:

• understanding of reportable conduct concepts
• skill in interviewing adults and, where necessary, children in a safe and appropriate way
• ability to manage procedural fairness
• independence from the events under investigation
• capacity to produce clear, evidence-based findings.

Licensing does not prove child-safeguarding competence. An investigator may be lawfully licensed yet still be poorly suited to a reportable conduct matter involving children, trauma, family dynamics or workplace power imbalances.

A practical selection and scoping process

Before appointing an external investigator in NSW or WA, organisations should work through a structured decision process.

First, confirm whether the matter falls within the Reportable Conduct Scheme and diarise the reporting deadline. In NSW, initial notification is due within 7 business days and the final report within 30 calendar days. In WA, initial notification is due within 7 working days and the final report is due on conclusion.

Second, decide whether the investigation can properly be conducted internally. Consider conflicts, capability, perceived independence and child-safeguarding expertise.

Third, if using an external provider, check whether a private investigator licence is required in the relevant jurisdiction and verify it before engagement.

Fourth, assess competence beyond licensing. Ask about reportable conduct experience, trauma-informed practice, interviewing method, procedural fairness, evidence handling and report writing.

Fifth, define scope carefully. The investigator should know whether they are being asked to gather facts only, make findings on reportable conduct, address policy breaches, or provide recommendations. Scope confusion commonly leads to delay, duplicated interviews and poor reporting.

Finally, maintain oversight. Outsourcing the investigation does not outsource accountability. The head of the organisation remains responsible for regulator notifications, oversight of the process, and ensuring the final report is fit for purpose.

Key takeaways

• In NSW, external investigators need a Class 2E (Private Investigator) licence; internal employees are generally exempt within the scope of employment.
• In WA, external investigators must be licensed under the relevant state security legislation; internal employee arrangements are treated differently from external commercial engagements.
• Do not rely on labels such as consultant or workplace reviewer; assess the substance of the engagement.
• Licensing is necessary where required, but regulators also expect appropriately qualified, trauma-informed investigators.
• A common benchmark is Certificate IV in Government Investigations plus relevant child-interviewing and safeguarding experience.
• The organisation retains responsibility for notifications, oversight, procedural fairness and the quality of the investigation outcome.