Who Can Investigate? Licensing, Independence and Procedural Fairness in NSW, WA and Victoria

When a reportable conduct allegation arises, one of the first practical questions is who should investigate. In New South Wales, Western Australia and Victoria, the answer is not simply “whoever is available”. Organisations need to consider three issues together: whether the investigator can lawfully do the work, whether they are sufficiently independent for the matter, and whether the process will be procedurally fair to the respondent while remaining child-centred and trauma-informed. Getting that balance wrong can create regulatory risk, weaken findings and undermine confidence in the outcome.

Internal investigators: when they can usually proceed

In many matters, an internal investigator can lawfully conduct the investigation. As a general rule, internal employees acting within the scope of their employment are not treated the same way as external commercial investigators for private investigator licensing purposes. That is particularly important in NSW, where external investigators need a Class 2E (Private Investigator) licence under the Security Industry Act 1997 (NSW), but internal employees are exempt when acting within their employment role. A similar practical distinction applies in WA, where external investigators must be licensed under the Security and Related Activities (Control) Act 1996.

That does not mean every internal investigator is suitable. The organisation still needs to ask whether the person is appropriately qualified and sufficiently removed from the events, reporting lines and personalities involved. A senior HR practitioner or safeguarding lead may be able to manage a lower-complexity matter, particularly where the allegations are narrow, records are strong and there is no obvious conflict. But serious child-related allegations often require more than workplace investigation experience.

Regulators expect appropriately qualified investigators. A common benchmark is Certificate IV in Government Investigations together with experience in trauma-informed interviewing. For child-related allegations, practical capability matters: understanding reportable conduct thresholds, managing parallel processes, assessing witness reliability carefully, documenting findings to the civil standard, and avoiding questioning that could compromise child safety or other investigations.

Internal investigators are more likely to be appropriate where:

• the allegations are relatively contained and factually clear
• there is no close personal or managerial connection to the respondent or complainant
• the investigator has suitable training and experience
• the organisation can maintain confidentiality and proper records
• there is no realistic concern that the process will be seen as biased or protective of senior staff.

When external investigators are the safer or necessary choice

External appointment becomes much more important where the allegations are serious, sensitive or structurally difficult for the organisation to handle internally. In NSW and WA, organisations also need to deal directly with licensing requirements if they engage an external investigator on a commercial basis.

In NSW, an external investigator conducting this kind of work will generally need a Class 2E (Private Investigator) licence. In WA, an external investigator must be licensed under the applicable WA security and related activities legislation. This is not a technical side issue. If an organisation engages an unlicensed external provider where a licence is required, it risks regulatory scrutiny and questions about the legitimacy of the investigation process.

External investigators are often the better option where:

• the respondent is senior, influential or closely connected to decision-makers
• the allegations involve sexual misconduct, serious physical violence, significant emotional or psychological harm, or significant neglect
• there may be multiple child witnesses or a need for particularly careful trauma-informed interviewing
• there are parallel police, child protection, employment or disciplinary processes
• the organisation’s internal investigator lacks specialist experience
• there has already been criticism of the organisation’s impartiality.

Even where an external investigator is engaged, the organisation remains responsible for oversight. The head of the organisation must still meet scheme obligations, including notification and reporting timeframes. Outsourcing the investigation does not outsource accountability.

Licensing is only one part of suitability

A licence, where required, is not the same thing as competence. Organisations should assess investigators against a broader suitability framework before any appointment is made.

Start with qualifications and relevant experience. Child-related reportable conduct matters are not ordinary employee misconduct investigations. The investigator should understand the relevant statutory context, know how to apply the balance of probabilities with appropriate caution for serious allegations, and be able to produce clear, evidence-based findings. They should also be capable of planning interviews in a way that minimises harm and avoids unnecessary repetition, especially where children are involved.

Next, test independence. The question is not only whether the investigator is actually impartial, but whether a fair-minded observer would see them as independent enough for the task. A person who has previously advised on the allegations, supervised the respondent, or has a strong stake in the outcome may be a poor choice even if technically skilled.

Finally, assess practical capacity. Can the investigator complete the work within the relevant timeframe? Do they understand regulator expectations? Can they preserve evidence, manage confidentiality and produce an interim or final report that aligns with scheme requirements?

Procedural fairness in Victoria, and why it matters everywhere

Victoria places strong emphasis on procedural fairness, and that emphasis is a useful guide for organisations in all jurisdictions. A procedurally fair investigation does not mean treating a child safety allegation like civil litigation, nor does it require endless delay in the name of balance. It means using a sound process that gives the respondent a fair opportunity to understand and respond to the substance of the allegations before adverse findings are made, while protecting children and preserving the integrity of the investigation.

In practice, that usually includes:

• identifying the allegations with enough detail to allow a meaningful response
• avoiding predetermination
• considering both inculpatory and exculpatory material
• keeping accurate records of evidence and reasoning
• separating fact-finding from disciplinary decision-making where possible
• giving weight to child safety needs when deciding how and when information is put to the respondent.

Victoria’s scheme is governed by the Child Wellbeing and Safety Act 2005, and from 23 February 2026 responsibility transferred to the Social Services Regulator. Organisations operating in Victoria should also be alert to the expanded definition of “employee”, which captures labour-hire workers, secondees, and individual business directors or owners. That affects who may be the subject of a reportable conduct process and, in turn, the complexity of investigator selection.

A practical decision framework for NSW, WA and Victoria

A defensible appointment process usually starts with four questions.

First, is an internal investigator lawfully able to do this work? In NSW, internal employees acting within their employment scope are exempt from the private investigator licensing requirement that applies to external investigators. In WA, focus carefully on whether the proposed investigator is external and therefore needs the relevant licence. In Victoria, licensing is not the issue identified in the scheme settings summarised here, but independence and procedural fairness remain central.

Second, is the matter serious or sensitive enough that an external investigator is preferable? The more serious the allegation, the more likely external independence will be the safer course.

Third, does the proposed investigator have the right skills for child-related allegations? Look beyond general workplace investigation experience and test for safeguarding, trauma-informed interviewing and reportable conduct knowledge.

Fourth, can the organisation demonstrate fairness? If the appointment decision would be difficult to defend to a regulator, a court, the board or affected families, it is probably the wrong choice.

Key takeaways

• Internal investigators can often proceed, but only if they are suitably qualified, genuinely independent and acting within their employment role.
• In NSW, external investigators generally need a Class 2E (Private Investigator) licence; internal employees are exempt within employment scope.
• In WA, external investigators must be licensed under the relevant WA security and related activities legislation.
• In Victoria, the key issues are suitability, independence and strong procedural fairness, especially in serious child-related matters.
• A licence does not by itself prove competence; organisations should assess qualifications, child-safeguarding expertise, trauma-informed practice and reporting capability.
• For serious or high-risk allegations, an external investigator is often the more defensible choice, but the organisation still retains responsibility for compliance and reporting.