NZSA reports that a legal decision has ruled security consultants offering workplace investigation services must be licensed as private investigators unless they hold an equivalent form of accreditation.

After hearing a complaint about the way a consulting company handled an investigation into alleged workplace misconduct, the Private Security Personnel Licensing Authority, Trish McConnell, found the company had been in breach of the Private Security Personnel and Private Investigators (PSPPI) Act because neither it nor its investigators had been appropriately licensed during the 2019 investigation (NZPSPLA, 4 June 2020).

McConnell ruled this failure did not warrant prosecution because it had been inadvertent and was the result of a widespread belief among employment investigators that they were not required to comply with the legislation. The 2 investigators who did the work now both hold practicing certificates as lawyers, and McConnell concluded that this was sufficient to exempt them from any additional licensing requirements.

Under the PSPPI Act, any person or business that takes money to obtain and supply information (other than that in public records) relating to the character, actions or behaviour of others, is deemed to be a private investigator, McConnell said. The work done by the consultant company was of this nature, with most of it relating to allegations of bullying, sexual harassment and other inappropriate workplace behaviour.

Responding to submissions from the company that the legislation was not intended to apply to work of this type, she acknowledged that employment investigators may not have been specifically considered when the law was enacted, but said the definition of private investigator in the act was “clearly intended … to cover all people in the business of carrying out investigations into a person’s character, actions, or behaviour [which] is an integral part of an employment investigator’s work.”

She also rejected the company’s claim that because employment investigators do not use covert surveillance, they should not be regarded as private investigators.

“Covert surveillance is not part of the definition of the work of a private investigator as set out in the act,” she said, noting that the term “private” was intended to distinguish the investigators covered by the act from those employed by the police and other government agencies.

Meanwhile, NZISM president Robyn Bennett says the PSPLA decision has significant ramifications for the health and safety industry because it leaves a lot of unanswered questions around the legal status of those who undertake investigations and audits on behalf of others.

These questions, she says, not only pertain to those providing health and safety investigations as part of a consultancy service, but also to organisations seeking support from external auditors and assessors.

“When might private investigator licensing be required by those whom they wish to engage?” she asks.

Complicating matters is that fact that the work history, membership, training and evidence requirements for those seeking to be licensed as private investigators don’t align well with professional standards for health and safety, she says.

“As this not only affects NZISM but all related associations, we’ve asked HASANZ to take the lead in this to provide some definitive answers that will assist all parties.”

She says HASANZ will seek a legal opinion and will look to clarify aspects of the PSPLA decision with Minster of Justice Kris Faafoi.

“We don’t think we should try and interpret this for ourselves, given that the work health and safety people do is varied and complex.”

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