Who Can Investigate? Internal Fact-Finding, External Investigators and Licensing Rules in NSW and WA

When a reportable conduct allegation arises, one of the first operational questions is who should investigate it. In New South Wales and Western Australia, that decision is not just about capability and capacity. It also raises licensing, independence, procedural fairness and child safety issues. For safeguarding leads, HR teams and executives, the practical task is to match the investigator to the matter while staying within the Reportable Conduct Scheme requirements and any applicable private investigator licensing rules.

The starting point: internal fact-finding is often permissible

In both NSW and WA, an organisation can commonly use internal staff to conduct a reportable conduct investigation or other structured fact-finding process, provided those staff are acting within the scope of their employment and have the right skills for the task.

In NSW, external investigators generally require a Class 2E (Private Investigator) licence under the Security Industry Act 1997 (NSW). Internal employees are exempt when they are conducting inquiries within their employment role. In practice, that means a suitably authorised employee of the organisation may gather documents, interview witnesses, assess credibility and prepare findings for the head of entity or delegate, without needing a private investigator licence.

A similar practical distinction applies in WA. External investigators usually need to be licensed under the Security and Related Activities (Control) Act 1996. Internal staff carrying out an employment-related inquiry are generally treated differently from external commercial investigators.

That said, “permissible” does not automatically mean “appropriate”. A regulator will be concerned with whether the investigation was properly conducted, whether children were protected, and whether the process was fair and thorough. An internal investigator who lacks experience, sits too close to the allegations, or cannot manage witness issues may be a poor choice even if no licence is required.

When to use an internal investigator

Internal investigators can be effective where the matter is relatively contained and the organisation has credible in-house capability. Common examples include allegations where:

• the factual issues are narrow and identifiable
• key witnesses are employees or volunteers who can be readily spoken to
• the organisation already holds most relevant records
• there is no obvious conflict of interest
• there is no significant concern about perceived bias
• the investigator has training in workplace or safeguarding investigations.

Internal investigation can also support timeliness. That matters in both jurisdictions because notification deadlines are short. NSW requires an 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. Early internal fact-finding may help the organisation understand immediate child safety risks, preserve evidence and give the regulator a clearer account of what has occurred and what action is underway.

Even where an internal investigator is used, the organisation should still test whether the person is suitably independent. A line manager who supervises the subject employee, a staff member previously involved in related complaints, or someone with strong personal ties to key witnesses may not be appropriate. The issue is not only actual bias, but also whether the process will be seen as credible.

When external investigators are the safer option

External investigators are often the better choice where independence, complexity or specialist expertise is central. That is particularly so where allegations involve:

• sexual misconduct or other highly sensitive conduct
• multiple children or multiple alleged incidents
• senior staff, executives or influential employees
• cross-organisational issues or shared staffing arrangements
• strong factual disputes or likely legal challenge
• reputational risk requiring visible independence
• concerns that internal staff may not manage trauma-informed interviews well.

In NSW and WA, once you engage an external commercial investigator, licensing becomes a live compliance question. In NSW, that usually means checking for a current Class 2E (Private Investigator) licence. In WA, it means confirming the provider is licensed where the law requires it under the state’s security and related activities framework.

Do not assume that a consultant who markets themselves as a workplace investigator is automatically authorised for this kind of work. Licensing should be checked before appointment, and the scope of engagement should be documented clearly. Organisations should also be cautious about hybrid arrangements, such as a contractor embedded into the business but operating effectively as an external service provider. If the person is not truly acting as an employee within the ordinary scope of employment, a licensing issue may arise.

Suitability is more than licensing

Licensing is only one threshold issue. Regulators expect investigations to be carried out by appropriately qualified people. A common benchmark is Certificate IV in Government Investigations, but credentials alone are not enough. The investigator should also have practical experience in trauma-informed interviewing, evidence assessment and procedural fairness.

A useful suitability assessment asks:

• Does the investigator understand the reportable conduct framework?
• Can they distinguish child protection risk action from disciplinary findings?
• Have they handled allegations involving children before?
• Can they plan interviews in a way that avoids contamination of evidence?
• Do they know when not to interview a child and when specialist support is needed?
• Can they produce clear, evidence-based findings on the civil standard of proof?

The applicable standard is the balance of probabilities, not the criminal standard. For serious allegations, findings should be approached with appropriate care consistent with the Briginshaw principle. In practical terms, that means the more serious the allegation and consequences, the more careful the investigator must be in evaluating the quality and cogency of the evidence.

Procedural fairness and good investigation design

Whether the investigation is internal or external, procedural fairness remains essential. In NSW and WA, a poor process can undermine the reliability of findings and create avoidable regulator concern.

At a minimum, organisations should ensure:

• the allegation is framed clearly and particularised
• the respondent is informed of the substance of the allegation at the appropriate time
• relevant evidence is gathered and tested
• witnesses are interviewed fairly and appropriately
• the respondent has a fair opportunity to respond
• conflicts of interest are identified and managed
• reasons for findings are documented.

Child safety should shape the design of the process from the outset. That includes immediate protective action where needed, careful recordkeeping, and trauma-informed handling of any child witness or complainant. Not every matter requires a child interview by the organisation. In some cases, speaking directly with a child may be inappropriate, unnecessary or better handled by someone with specialist expertise.

A practical approach is to separate roles where possible: one person manages immediate safeguarding actions, another handles employment decisions, and the investigator focuses on the fact-finding process. That separation can improve clarity, reduce bias risk and support better decision-making.

Key takeaways

• In NSW and WA, internal employees can often investigate within the scope of their employment without a private investigator licence.
• External commercial investigators usually need state-based licensing: Class 2E in NSW, and relevant licensing in WA.
• The question is not only whether an investigator can act, but whether they are the right person to act.
• Independence, trauma-informed skill, reportable conduct knowledge and procedural fairness are critical to investigator suitability.
• Use external investigators where sensitivity, complexity, seniority or conflict concerns make internal fact-finding less credible or less safe.
• Findings are made on the balance of probabilities, with careful attention to the seriousness of the allegation.