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

When a reportable conduct allegation arises, many organisations consider bringing in an external investigator to provide independence, specialist interviewing capability, or extra capacity. In New South Wales and Western Australia, that decision has an important legal dimension: an external or commercial investigator may need to hold the relevant private investigator licence. That position differs from the usual exemption applying to internal employees who investigate within the ordinary scope of their employment. For safeguarding leads, HR, and executive teams, the practical issue is not only who can investigate, but whether the investigator is properly authorised, suitably skilled, and able to run a process that meets regulator expectations.

When licensing becomes an issue

In both NSW and WA, the licensing question usually turns on whether the investigation is being conducted by an external provider as a commercial service, rather than by an employee of the organisation.

In NSW, external investigators generally require a Class 2E (Private Investigator) licence under the Security Industry Act 1997 (NSW). By contrast, internal employees are generally exempt where they are acting within the scope of their employment. That distinction matters for schools, charities, religious bodies, disability services, out-of-home care providers, and other in-scope organisations that may want to outsource a sensitive matter to a consultant or specialist investigator.

In WA, the equivalent issue arises under the Security and Related Activities (Control) Act 1996. External investigators must generally be licensed if they are engaged to conduct investigative work commercially. Again, that differs from the position of internal employees undertaking investigations as part of their employment duties.

The key compliance point is that organisations should not assume that investigative expertise alone is enough. A person may have HR, legal, child protection, or forensic interviewing experience, but if they are operating externally and the role falls within the licensing framework, the organisation should verify that the appropriate licence is held before engagement.

Internal investigators: the usual exemption

The internal employee exemption is often misunderstood. It does not mean every person inside the organisation is automatically the right choice to investigate. It means that, as a licensing matter, employees are generally not required to hold a private investigator licence when investigating within their employment role.

That exemption is practical for larger organisations with dedicated safeguarding, integrity, employee relations, or complaints teams. It allows internal handling of allegations without the extra step of engaging a licensed commercial investigator. But the exemption does not remove the need for capability, impartiality, and sound process.

An internal investigator should be able to manage:

allegations involving children and child-related work
trauma-informed planning and interviewing
procedural fairness for the subject of allegation
careful evidence handling and recordkeeping
reporting that addresses the regulator’s expectations.

Where an internal investigator lacks experience, has a conflict of interest, or is too close to the people or program involved, an external appointment may be the better course. Independence can be especially important in senior staff matters, culturally sensitive matters, or cases where community confidence is at stake.

What NSW and WA regulators expect in practice

Licensing is only one part of the picture. Regulators are concerned with whether the organisation has responded appropriately to the allegation, protected children, and investigated competently.

In NSW, reportable conduct matters sit within the oversight of the Office of the Children’s Guardian under the Children’s Guardian Act 2019. Organisations must make an initial notification within 7 business days and provide the final report within 30 calendar days. That timeframe means the organisation needs to decide quickly whether the matter can be investigated internally or whether an external investigator is needed.

In WA, the Reportable Conduct Scheme operates under the Parliamentary Commissioner Act 1971 and is overseen by Ombudsman WA. The initial notification timeframe is 7 working days, with the final report provided on conclusion. Even where the reporting timetable differs from NSW, the same operational issue arises: early triage is critical so that the organisation can engage a properly authorised and suitably capable investigator without delay.

Across both jurisdictions, regulators expect investigations to be conducted by appropriately qualified people. A common benchmark is Certificate IV in Government Investigations, supported by relevant experience in workplace and child-safeguarding matters. For reportable conduct allegations, regulators also expect more than generic investigation skills. The investigator should understand child-safe practice, allegation assessment, credibility analysis, trauma-informed interviewing, and the distinction between employment findings and criminal guilt.

Importantly, reportable conduct investigations apply the civil standard of proof: the balance of probabilities, informed by the Briginshaw principle for serious allegations. Investigators should not frame their task as proving a criminal offence beyond reasonable doubt.

Scope, process and selecting the right external investigator

When engaging an external investigator, organisations should define scope carefully. The engagement should make clear:

the allegation or issues to be investigated
whether the investigator is conducting fact-finding, making findings, or both
the reporting lines within the organisation
expected interaction with the regulator
how child safety risks will be escalated during the investigation
document handling, confidentiality, and record retention requirements.

It is also prudent to confirm at the outset that the external investigator understands the reportable conduct context, not just workplace misconduct generally. A strong workplace investigator may not automatically be experienced in matters involving children, grooming behaviours, family engagement, or managing parallel processes such as police, child protection, or employment action.

Before appointment, organisations should check:

current licence status where required in NSW or WA
qualifications and investigative training
experience in child-related and safeguarding matters
trauma-informed interviewing capability
ability to produce regulator-ready reports
independence from the parties and the service area involved.

Finally, using an external investigator does not shift accountability away from the head of the organisation. The organisation remains responsible for notification, oversight, protective action, procedural fairness, and the quality of the final response to the regulator.

Key takeaways

In NSW, external investigators generally require a Class 2E (Private Investigator) licence under the Security Industry Act 1997 (NSW).
In WA, external investigators generally must be licensed under the Security and Related Activities (Control) Act 1996.
Internal employees are generally exempt from private investigator licensing when investigating within the scope of their employment.
Licensing is not enough on its own; regulators expect appropriately qualified investigators with child-safe, trauma-informed capability.
NSW requires initial notification within 7 business days and a final report within 30 calendar days.
WA requires initial notification within 7 working days and a final report on conclusion.
Organisations should verify licence status, capability, independence, and reportable conduct experience before engaging an external investigator.