External HR consultants or Health and Safety workplace investigators who do not hold the requisite licence and are not practicing lawyers will not be able to conduct workplace investigations and may be found to be in breach of the Act. Employers may continue to conduct their own internal investigations and law firms and individual lawyers with practicing certificates are exempt from the requirement to hold a PI licence and may continue to conduct workplace investigations.

I would read from the context that if you are not a direct employee for the PCBU, you must hold the license, so if you are an H&S consultant you would require to hold the licence.

Just a thought........

Hi Ian, can you advise where the publication was found. This is very concerning i presume moving forward.

@SafetylawyerNZ has provided this link,
https://www.anthonyharper.co.nz/who-can-conduct-workplace-investigations-kathryn-mckinney/.
also Justice Department file reference [2020] NZPSLA 007

Having read the article it is HR related and refers to investigations of employee conduct so I would think that an accident investigation would be outside this parameter, so any incident or accident investigation would not require the person to licenced, and if you read theJustice report it puts it all in context.

I would read from the context — Don Ramsay

I would read from the context that the original post was written by a company that does external HR investigation that has PI lincences. The original decision was regarding and employment relations case rather than a H&S investigation.
As long as we stay away from investigating an individual for penalties and focus on what we can learn from the incident (isn't that what we should be doing anyway?) there shouldn't be a need for even external H&S investigators to be PI licensed.

Having read the article — Don Ramsay

Great minds! Saw this after I posted my reply.

And the judgment was made by the Private Security Personnel Licensing Authority

cheers

I would question the ability of a private investigator or lawyer to conduct a safety investigation as the outcomes and methodology is different.

You want someone to not cooperate with a safety investigation? Get a lawyer involved.

Read section 5 of the Private Security Personnel and Private Investigators Act.
I don't think it applies to investigations of incidents/events of the sort that we would investigate.

Digging up this old thread since there has been some new developments - specifically the decision made by the Private Security Personnel Licensing Authority (PSPLA) that H&S Consultants that carry out investigations are considered Private Investigators, but they agreed that HASANZ, NZISM or similar are better suited to "regulate" H&S Consultants. Therefore if you are registered with HASANZ or a member of a HASANZ member organisation you are exempt from needing to be licensed.
(Also it clarifies auditors and employees who conduct investigations for their employer are not considered private investigators)
Update including links and previous updates are on the NZISM website - https://www.nzism.org/blog/accident-investigators-and-the-psppi-act-2010/

Like most of the above comments I think this is not the best outcome, while it is good there is some clarity I think the arguments made missed some key issues (similar to those made here).

1.
The definition of a private investigation in the act is [paraphrasing] someone (or a business) who collects information regarding;

• the personal character, actions, or
• behaviour; or the financial position; or
• the occupation or business; or
• the identity or whereabouts

of another person to provide to a client - in other words their core business is providing information about one person to another person.
The act also makes an number of exceptions, one of which is where the information is gathered "only as a necessary, usual, or reasonable incident of any other activity by that person that is not described in [the definition of a private investigator]"
Investigation into a workplace incident is the activity that H&S practitioners undertake, with gathering the types of information above being incidental to that as necessary - we do not collect the information primarily to provide it to another person in and of itself. This should have been the main argument made to the PSPLA

2.
The exclusion of "in house" H&S practitioners solely on this fact alone is potentially illogical as a large proportion of "in-house" H&S investigations, while conducted by the employer regarding their own incident, have the ultimate purpose of providing the information to others - mainly clients but this could even include for WorkSafe in the case of duty holder reviews (but not sure if this would be exempt as providing information to the Crown as they are a Crown Agent).

3.
It is also potentially illogical to say that the HASANZ / HASANZ Member Organisations are better positioned than the PSPLA to regulate/manage H&S Consultants that conduct H&S Investigations, but if you are not a member of such organisation then you need to be licensed by the PSPLA - surely the logical outcome of the first part of this statement would be PSPLA does not regulate any H&S practitioners, and leaves HASANZ, etc. to regulate all H&S Investigations / H&S practitioners. Unfortunately this is a much bigger issue relating to the professionalisation of the H&S industry in NZ.

One final point is that I do completely agree with the comment made by @Mike Cosman that there is need to for our industry as a whole to improve knowledge and understanding of NZ's privacy laws and how they relate to H&S Investigations.

Interested in hearing others opinions on this decision.

Any information released should be de-identified. So, the information provided relates to the incident, and causes. While the information collected will include a lot of personal info, this should not be released to the customer.

Any information released should be de-identified. So, the information provided relates to the incident, and causes. While the information collected will include a lot of personal info, this should not be released to the customer. — Aaron Marshall

I agree with you completely @Aaron Marshall, and that is my point that H&S investigation should not be included under the types of investigations covered by the Act's definition of a "Private Investigator" as the private/identifiable information that may need to be collected for the investigation of the event either doesn't need to be included in the final report or can be de-identified/anonymised.

Unfortunately the decision that has been made from the discussion between the PSPLA / HASANZ / NZISM / etc. has just focused on:

• the business relationship involved (distinguishing between a H&S Practitioner that is consultant/contractor and an employee), and
• simply the type of information being collected (rather than the purpose for which it is being collected).

Which has unfortunately meant that the PSPLA, using this basis, has concluded that H&S Consultants are considered Private Investigators under the Act.

I’ve already seen some different interpretations of this ruling so is someone able to please clarify:

Is it:

You need to be a member of the professional organisations that are members of HASANZ such as NZISM. (Therefore applies all levels of membership within NZISM)

Or

You need to hold the grade of a ‘professional member’ of a professional organisation that are members of HASANZ such as NZISM. (Therefore only applies to ‘professional’ grade membership and above within NZISM.)

??

TIA

The exact wording from the decision is:

HASANZ and its member organisation are better placed than the PSPLA to regulate and have oversight of health and safety professionals. Therefore, any person who is on the HASANZ register or is a member of a HASANZ member organisation is not required to also hold a license or certificate with the PSPLA, and complaints against them for failing to do so will not be accepted by the Authority.

The wording from PSPLA is clear that any member of NZISM is covered. To clarify, the PSPLA policy is based on the HASANZ member organisations having their own "codes of ethics" and complaints processes - since these apply to all members of NZISM (not just graded members) it would stand that all members of NZISM are covered by this exemption.

Well, I'm in neither camp, but I am the "Senior Person responsible for safety investigations" for a number of companies, and approved as such by CAANZ.
I believe Maritime has the same structure. Does this superseded PSPLA and NZISM requirements?

The PSPLA decision is quite cleverly balanced. Now it is up to HASANZ and its member organisations to ensure that anyone on the register is competent to, among other things, investigate incidents.
At Victoria University of Wellington we are developing a new Master's level paper on incident investigations and hope to offer it at the end of 2023. The plan is for the paper to be available as a standalone paper (subject to entry requirements).
As a footnote, I searched the HSWA for "investig" and found that safety reps can investigate worker complaints. What if the complaints were about workplace incidents? Would there be a conflict between our Act and the Private Security Personnel and Private Investigators Act?

As a footnote, I searched the HSWA for "investig" and found that safety reps can investigate worker complaints. What if the complaints were about workplace incidents? Would there be a conflict between our Act and the Private Security Personnel and Private Investigators Act? — Chris Peace

Likely in the same situation as for H&S Consultants - given to be eligible to be a HSR under the Worker Engagement regs you have to be a worker in the workgroup then the PSPLA would have to conclude the same "in-house" exception would apply. Regarding the disclosure of information clause 14 of Part 1 of Schedule 2 of HSWA provides rules around what information a HSR can disclosed and when/who they can disclose it to. Which is what I would rather had seen in the PSPLA decision rather than a seemingly arbitrary line in the sand drawn based on employment status or membership of certain organisations