Are workplace health and safety investigators and auditors “private investigators”?

Thursday, November 10, 2022

The recent decision of the New Zealand Private Security Personnel Licensing Authority (the Authority) in [2022] NZPSPLA 030 will be of interest to all health and safety professionals who carry out investigations or audits, as well as organisations who employ those individuals. 

Background

In 2020 the Authority issued a decision in D, E & C Ltd [2020] NZPSPLA 007 in which it held that employment investigators were “private investigators” as defined in sections 5 and 13 of the Private Security Personnel and Private Investigators Act 2010 (the Act) and ought to be registered as private investigators under the Act.

The Health and Safety Association of New Zealand (HASANZ) subsequently approached the Authority questioning whether health and safety investigators and/or auditors also fell within the definition of “private investigator” in the light of the Authority’s decision in D, E & C Ltd.

The Authority subsequently determined to inquire into the issue and heard from a number of groups and individuals who would be affected by a requirement for health and safety investigators and auditors to become registered.

The Authority’s decision

In September 2022 the Authority issued its decision, making three key “indicative” findings. The findings are indicative only because the Authority does not have jurisdiction to issue binding decisions of a declaratory nature.

The Authority’s indicative findings are as follows:

  • First, health and safety auditors do not fall within the definition of “private investigator” in section 5 of the Act and are therefore not required to be licensed or certified under the Act.
  • Secondly, health and safety professionals who are in the business of carrying out health and safety investigations are private investigators as defined by section 5 of the Act and should be licensed or certified under the Act.
  • Thirdly, and despite the Authority’s finding in relation to health and safety investigators, the Authority indicated that any person who is on the HASANZ register or is a member of a HASANZ member organisation is not required to also hold a licence or certificate with the PSPLA. That is on the basis that HASANZ and its member organisations are better placed than the Authority to regulate and have oversight of health and safety professionals. Accordingly, the Authority will not accept complaints against those individuals.

Comment

The decision will be welcome news to those conducting health and safety audits and investigations who were concerned by the potential application of the Authority’s decision D, E & C Ltd to their business.

While the Authority indicated it considered health and safety investigators were “private investigators” who, on the face of the Act, should be registered, the Authority’s clear comments that it will not entertain complaints against members of HASANZ member associations means that health and safety investigators can continue with business as usual provided they maintain their membership with their respective HASANZ member association and are suitably qualified and competent to undertake workplace health and safety investigations.

The decision does not affect in-house health and safety auditors and investigators who were not the subject of the Authority’s inquiry and who, it appears, are not at risk of being required to be registered or certified private investigators under the Act.

Partner Olivia Lund acted for HASANZ in this matter. If you have any questions about this topic, please contact a member of our Health & Safety law team.  

 

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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