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Investigations NSW and WA

Who Should Investigate? Internal Fact-Finders, External Investigators, and Licensing Traps in NSW and WA

August 28, 2026 7 min read
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When a reportable conduct matter arises, one of the first governance decisions is who should investigate. In both New South Wales and Western Australia, organisations need to move quickly on notification timeframes, but speed should not override legality, capability or fairness. A poor choice of investigator can create avoidable risk: a conflicted internal fact-finder, an external investigator who lacks the required private investigator licence, or a process that cannot demonstrate procedural fairness. For safeguarding leads, HR teams and executives, the issue is not simply who is available. It is whether the investigator is lawfully engaged, appropriately qualified and able to produce findings the regulator can rely on.

Start with the scheme requirements and the role of the organisation head

Under the NSW Reportable Conduct Scheme, regulated by the Office of the Children’s Guardian, the head of a relevant entity must provide an initial notification within 7 business days and a final report within 30 calendar days. In WA, regulated by Ombudsman WA, the initial notification is due within 7 working days, with the final report provided on conclusion.

Those timeframes matter because they shape investigation planning. The organisation head remains accountable for the quality of the response even if the fact-finding work is delegated. In practice, that means the head should be able to explain:

  • why the investigator was chosen
  • whether the investigator was internal or external
  • how conflicts of interest were assessed
  • whether the investigator had suitable skills and experience
  • how procedural fairness was built into the process
  • whether any licensing requirement applied.

This is a governance decision, not just an operational one. It should be documented early, ideally in a written investigation plan or case strategy note.

When internal investigators may act

Internal investigators can often lawfully conduct workplace fact-finding in reportable conduct matters, provided they are acting within the scope of their employment and are sufficiently independent and capable for the task. This is particularly important in NSW, where external investigators may trigger private investigator licensing requirements, but internal employees are exempt when acting within their employment scope.

That exemption does not mean every internal staff member is suitable. An internal investigator should generally only be used where the organisation can show that the person:

  • is not implicated in the allegations
  • has no close reporting-line connection that would create actual or perceived bias
  • understands child-safe and trauma-informed practice
  • can manage evidence properly, including records, witness notes and document control
  • can put allegations fairly to the respondent and test competing accounts.

In practical terms, suitable internal fact-finders are often experienced HR, employee relations, integrity or safeguarding personnel. Even then, internal appointment is not always the best option. If the allegation concerns a senior executive, a pattern of failures by management, or a matter likely to attract external scrutiny, independence may be better demonstrated through an external appointment.

Organisations should also remember that “internal” is not a shortcut around quality. Regulators expect an appropriately qualified investigator. A common benchmark is Certificate IV in Government Investigations, combined with relevant experience and trauma-informed interviewing capability.

When external investigators are preferable — and when licensing becomes a trap

External investigators are often the safer choice where independence is critical, specialist expertise is needed, or the matter is complex. Examples include allegations involving multiple children, cross-program conduct, possible systemic failures, or circumstances where staff confidence in the neutrality of the process is low.

However, in both NSW and WA, a key compliance trap is assuming that any workplace investigator can be engaged to undertake reportable conduct fact-finding.

In NSW, an external investigator undertaking this kind of work will generally need 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.

This means procurement and legal teams should verify licensing before appointment, not after concerns arise. A sensible engagement process includes:

  • confirming whether the investigator is internal or an external commercial provider
  • sighting the relevant private investigator licence where external licensing is required
  • recording the licence details on file
  • checking the investigator’s experience with child-related allegations and workplace investigations
  • confirming understanding of the relevant reportable conduct framework
  • specifying scope, independence expectations and reporting lines in writing.

The practical distinction is straightforward: internal employees acting within their role are generally exempt from private investigator licensing, while external commercial investigators usually require the relevant state licence. Misclassifying a contractor as effectively “internal” can create risk, so organisations should take a conservative approach and verify status carefully.

How to evidence procedural fairness in NSW and WA matters

A defensible investigation is not only about who conducts it. It is also about whether the process was fair. Procedural fairness has particular importance in these matters because findings can have serious consequences for the respondent and may affect child safety decisions, employment outcomes and regulator confidence.

To evidence procedural fairness, organisations should be able to show that the respondent was:

  • told the substance of the allegations in sufficient detail
  • given a genuine opportunity to respond
  • heard by an unbiased decision-maker or investigator
  • assessed on relevant evidence rather than assumption or predisposition.

Fairness does not require full disclosure at the earliest possible moment if doing so would compromise child safety, evidence preservation or other lawful processes. But any limits on disclosure should be justified and documented.

Good practice records include:

  • a terms of reference or investigation plan
  • conflict of interest assessment
  • chronology of key decisions
  • interview invitations and questions
  • records of materials put to the respondent
  • reasons for accepting or preferring one account over another
  • a clear explanation of findings using the civil standard of proof.

For reportable conduct investigations, findings are made on the balance of probabilities, guided by the Briginshaw principle for serious allegations. That means serious matters require careful, cogent reasoning and reliable evidence. It is not the criminal standard.

What “appropriately qualified” should look like in practice

“Appropriately qualified” is not satisfied by general management seniority alone. In NSW and WA, organisations should look for a mix of technical, legal and safeguarding capability. A strong investigator profile will usually include:

  • formal investigations training, commonly including Certificate IV in Government Investigations
  • experience in workplace or safeguarding investigations
  • trauma-informed interviewing skills, especially where children or vulnerable witnesses may be involved
  • ability to assess credibility carefully without relying on stereotypes or unsupported impressions
  • understanding of confidentiality, recordkeeping and regulator expectations.

Where children may be interviewed, organisations should proceed with particular caution and ensure the approach is consistent with child-safe and trauma-informed practice. Not every reportable conduct matter requires direct interviewing of a child by the employer’s investigator. The organisation should consider necessity, risk of contamination of evidence, and whether other agencies are involved.

Ultimately, the best governance question is not “Can this person investigate?” but “Can we defend this appointment, this process and these findings to the regulator?” If the answer is uncertain, the organisation should pause, verify licensing, test conflicts and strengthen the investigation plan before proceeding.

Key takeaways

  • 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 provided on conclusion.
  • Internal employees may generally conduct investigations within the scope of their employment, but they must still be independent, capable and appropriately qualified.
  • External investigators in NSW generally need a Class 2E (Private Investigator) licence; in WA, external investigators must be licensed under the relevant WA security legislation.
  • Procedural fairness should be visible in the file: clear allegations, opportunity to respond, impartiality, proper records and reasoned findings.
  • A common capability benchmark is Certificate IV in Government Investigations, supported by trauma-informed interviewing experience and reportable conduct knowledge.