Using External Investigators Lawfully: Licensing, Independence and Scope in NSW and WA

When an organisation brings in an external investigator for a child-related complaint, governance questions arise immediately: are they lawfully authorised to investigate, are they sufficiently independent, and do they have the right skills for a reportable conduct matter? In New South Wales and Western Australia, these questions are not just procurement issues. They go directly to the defensibility of the investigation, the quality of findings, and the confidence a regulator can place in the organisation’s response.

Why licensing matters in NSW and WA

In both NSW and WA, external investigators will usually need the relevant private investigator licence if they are engaged commercially to conduct an investigation.

In NSW, external investigators require a Class 2E (Private Investigator) licence under the Security Industry Act 1997 (NSW). This is a critical threshold issue when an organisation is considering outsourcing all or part of a reportable conduct investigation. If the person is operating externally and for reward, licensing should be checked before the engagement begins.

In WA, external investigators must be licensed under the Security and Related Activities (Control) Act 1996. Again, this is not a technicality. If an organisation appoints an unlicensed external investigator where a licence is required, it risks undermining the integrity of the process and creating avoidable scrutiny from the regulator.

For safeguarding leads and HR executives, the practical point is simple: do not assume that subject-matter expertise alone is enough. A former police officer, workplace investigator or consultant may still need the relevant state licence if they are engaged as an external investigator. Licensing should be verified as part of due diligence, alongside qualifications, experience and conflicts checks.

How the internal employee exemption generally operates

A common source of confusion is the difference between an internal employee investigator and an external commercial investigator.

The factual position in NSW is clear: internal employees are exempt within the scope of their employment. More broadly, across schemes, internal employees conducting investigations are generally exempt from private investigator licensing requirements where they are acting as part of their employment role rather than selling investigative services to the market.

That exemption is important for schools, care providers, charities and other child-related organisations that investigate matters through HR, employee relations, legal or safeguarding teams. If an internal staff member is genuinely conducting the investigation as part of their role, the licensing issue that applies to private operators will usually not arise in the same way.

However, the exemption should be applied carefully. Organisations should ask:

• Is the investigator actually an employee, or are they a contractor presented as internal?
• Are they acting within the ordinary scope of their employment duties?
• Has the organisation documented the basis on which it considers the exemption to apply?
• Is the person sufficiently removed from the incident, reporting line or business unit to conduct a fair process?

Even where an internal employee is lawfully able to investigate without a licence, that does not automatically make them the best choice. The organisation must still assess competence, impartiality and procedural fairness.

Independence is not the same as being external

Many organisations equate independence with outsourcing. Regulators do not approach the issue that narrowly. An investigator can be external but not meaningfully independent, for example if they have an ongoing advisory relationship that creates perceived bias. Equally, an internal investigator may be capable of conducting a fair and impartial process if they are structurally separate from the allegations and have the right expertise.

In NSW, the Office of the Children’s Guardian operates a mature reportable conduct scheme with clear expectations around timely notification and sound investigation practice. In WA, Ombudsman WA oversees the scheme and will likewise expect the organisation to show that its process was lawful, fair and appropriately managed. In both jurisdictions, the focus should be on whether the investigator was positioned to gather evidence objectively, assess credibility fairly and avoid actual or perceived conflicts.

As a governance matter, consider appointing an external investigator where:

• the allegation concerns a senior executive or principal;
• internal decision-makers are too close to the matter;
• there is likely to be public scrutiny or stakeholder challenge;
• specialised child interviewing or trauma-informed capability is needed; or
• the organisation lacks internal capacity to meet reporting timeframes while maintaining quality.

But even then, “external” is not enough. The engagement should specify scope, reporting lines, information-sharing arrangements, procedural fairness requirements and any regulator-facing deliverables.

What regulators mean by an “appropriately qualified” investigator

Licensing answers only one part of the question. Regulators also expect investigators to be appropriately qualified.

That concept is practical rather than merely formal. A common benchmark is Certificate IV in Government Investigations together with relevant investigation experience. In child-related matters, regulators also expect capability in trauma-informed interviewing, evidence assessment, recordkeeping and procedural fairness.

For reportable conduct matters, an appropriately qualified investigator should usually be able to:

• plan and scope an investigation proportionately;
• understand the allegations within the reportable conduct framework;
• interview adults and, where necessary, engage appropriately with child-focused evidence;
• apply the civil standard of proof on the balance of probabilities, with seriousness of allegation considered consistently with the Briginshaw principle;
• make findings based on evidence rather than assumption;
• document reasons clearly; and
• support the head of entity to meet statutory reporting obligations.

Organisations should avoid appointing investigators based solely on seniority, legal background or general workplace investigation experience. Reportable conduct matters often involve safeguarding dynamics, parallel processes and child-centred risk considerations that require more specialised judgment.

Building a defensible engagement process

A sound appointment process reduces risk before the investigation even starts. In NSW and WA, a defensible engagement with an external investigator should include:

1. Licence verification
   Confirm the investigator holds the required licence for the jurisdiction if they are operating externally.

2. Conflict and independence checks
   Test for personal, professional and organisational conflicts. Record the outcome.

3. Capability assessment
   Review qualifications, reportable conduct experience, interviewing skills and trauma-informed practice.

4. Clear written scope
   Define the allegations, issues to be determined, expected methodology, timeframes and reporting format.

5. Procedural fairness expectations
   Require a fair opportunity for relevant persons to respond to adverse information.

6. Interface with statutory reporting
   Make sure the investigator understands the organisation’s obligations to the Office of the Children’s Guardian in NSW or Ombudsman WA in WA, including notification and final reporting timeframes.

In NSW, initial notification is required within 7 business days and the final report within 30 calendar days. In WA, initial notification is required within 7 working days, with the final report due on conclusion. Those timeframes reinforce the need to appoint someone who is not only lawful and independent, but also operationally capable.

Key takeaways

• In NSW, external investigators require a Class 2E (Private Investigator) licence under the Security Industry Act 1997 (NSW).
• In WA, external investigators must be licensed under the Security and Related Activities (Control) Act 1996.
• Internal employee investigators are generally exempt from private investigator licensing when acting within the scope of their employment.
• Independence is about impartiality and conflict management, not simply whether the investigator is external.
• An appropriately qualified investigator should bring investigation training, reportable conduct experience, trauma-informed practice and sound procedural fairness.
• Before appointing an external investigator, verify licence status, assess conflicts, confirm capability and set a clear written scope.