Original article: March 2021

Robyn Bennett


A DECISION HAS BEEN REACHED - 5th OCTOBER 2022

Members will recall that we have highlighted an ongoing investigation by the Private Security Personnel Licensing Authority (PSPLA) into whether or not external health and safety auditors and investigators need to be licensed under their legislation. A detailed legal submission was made on behalf of HASANZ whilst NZISM also made its own, presented in person by Robyn Bennett. Karl Berendt and I joined online whilst Jodi Wright from NZSC also attended.

There was an excellent debate with the Authority members about the nature of the work of auditors and investigators and they seemed genuinely engaged in understanding the points that were made. We had not anticipated a speedy response but, quite unexpectedly, this appeared last week and contained excellent news.

The Authority acknowledged that there were aspects of the work of health and safety investigators that could be seen in a similar light to that of private investigators and hence felt that the Act did apply to them - but not to auditors. However, they agreed that the Licensing Authority could add little value in terms of oversight, given this was not their area of expertise, and that HASANZ member bodies, with their codes of ethics and complaints procedures, were best placed to deal with any issues that might arise.

You are welcome to read the full decision. However, for ease, the three findings are as follows:

"[44] We conclude:

a) Health and safety auditors do not fit within the definition of private investigator in s 5 of the Act and accordingly are not required to be licensed or certified under the Act.
b) Health and Safety professionals who are in the business of carrying out health and safety investigations are private investigators as defined by s 5 of the Act and, subject to the proviso below, should be licensed or certified with the PSPLA. This finding extends to health and safety investigator employees as defined in s13 of the Act.
c) HASANZ and its member organisations 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 licence or certificate with the PSPLA, and complaints against them for failing to do so will not be accepted by the Authority."

This is a significant victory for the professions and demonstrates the value of working together, as well as being able to articulate our unique position as an adjunct to the HASANZ overall view.

For any consultants carrying out investigations, who are reading this who are not yet members of NZISM, the message is clear. Join us now or you will need to be licensed by the PSPLA.

Ngā mihi

Mike Cosman

Governance Board Chair, NZISM

PROGRESS UPDATE - 7th SEPTEMBER 2022

Myself and Jodi Wright, CEO of the New Zealand Safety Council (NZSC), together with HASANZ, have been in discussions with the Ministry of Justice and the PSPLA over a number of months to seek clarity on the requirements. They have undertaken a review and have indicated to us that, at this stage, the Act applies to health and safety investigators and auditors, and so will have ramifications for some of our members. It’s important to note that health and safety practitioners and professionals conducting in-house workplace investigations or audits are exempt.

The process has not yet been concluded, and there is still work behind the scenes on submissions and various other activities before the final decision is reached. We are continuing to work with both NZSC and HASANZ on this to achieve a reasonable and appropriate outcome.

As mentioned previously, the PSPLA has put a dispensation in place for those that are members of HASANZ, which we have understood to mean current NZISM members who are on the HASANZ register. This means that until the PSPLA issues its final decision (after submissions) members are not required to apply for a licence or certificate, and no complaint will be accepted against a member on the HASANZ register on the basis that they are carrying out investigation work without a licence or certificate.

What I want to flag to you again as a member, is that if you are an external consultant offering health and safety investigation or audit services, without being registered on HASANZ, you are potentially in breach of the law. Furthermore, if an employer engages a non-HASANZ registered consultant for health and safety investigation or audit services, there are potential implications as well.

I am continuing to be involved in this activity and will keep you updated as things progress. If you wish to contact me, please do so by email at president@nzism.org

Ngā mihi,

Robyn Bennett

PROGRESS UPDATE - 15th JUNE 2022

We are now seeing further implications of the Private Security Personnel and Private Investigators Act 2010 (PSPPI Act) on health and safety investigators and auditors with the release of several documents. (As a quick reminder, there were questions on whether the requirements of the Private Security Personnel Licensing Authority (PSPLA) apply to health and safety investigators and auditors.) The documents released are a legal opinion and an investigation report prepared for the Chief Investigator (CIPU) and the PSPLA, both of which can be accessed at the bottom of this update.

Of note is a test in the CIPU investigation report on what may trigger the requirement to hold a license under the Act. It states that:

"Key aspects to assist to determine whether a health and safety investigation or audit may be captured by the PSPPI Act, include the following questions:

  • Are individuals or groups being interviewed, and are statements being taken or recorded?
  • Are maintenance, training, incident, or other records or reports examined?
  • Is other information being sought or obtained that is not a public record?
  • Is information about individuals’ behaviours, actions, or character being gathered?
  • Is information that is generally considered private being obtained or provided to the health and safety investigator or auditor?
  • Is a report being generated that includes conclusions or recommendations? (p.27)"
This test means there are far wider implications than anticipated, particularly for auditors, and we have lack of clarity on specific definitions. For example, how does it apply to international ISO 45001 auditors, health and safety reviews, or even health and safety professionals who undertake investigations as part of a fixed contract but where they are not directly employed?
So what now?
Firstly, HASANZ is looking at a coordinated submission process, which is being developed now. This will give NZISM and you as members an opportunity to provide feedback. There is also a hearing on the 1 September 2022 that NZISM will be looking to attend. There is also work behind the scenes in anticipation of the hearing looking at options on how the requirements of the PSPPI Act might be more easily met.
Remembering, for health and safety investigators and auditors, and those engaging them:
  • Health and safety practitioners and professionals conducting in-house workplace investigations or audits are exempt.
  • The PSPLA has put a dispensation in place for those that are members’ of HASANZ, which we have understood to mean current NZISM members who are on the HASANZ register.
I continue to be involved in this activity and will keep you updated as things progress.
If you wish to contact me, please do so by email at president@nzism.org
Ngā mihi,
Robyn Bennett
NZISM President
Links to the referenced documents:

PROGRESS UPDATE - 18th MAY 2022

There has been some movement on the implication of the Private Security Personnel and Private Investigators Act 2010 (the Act) on health and safety investigators and auditors.

As a quick recap, there were questions on whether the requirements of the Private Security Personnel Licensing Authority (PSPLA) apply to health and safety investigators and auditors.

Myself and Jodi Wright, CEO of the New Zealand Safety Council (NZSC), together with HASANZ, have been in discussions with the Ministry of Justice and the PSPLA over a number of months to seek clarity on the requirements. They have undertaken a review and have indicated to us that, at this stage, the Act applies to health and safety investigators and auditors, and so will have ramifications for some of our members. It’s important to note that health and safety practitioners and professionals conducting in-house workplace investigations or audits are exempt.

The process has not yet been concluded, and there is still work behind the scenes on submissions and various other activities before the final decision is reached. We are continuing to work with both NZSC and HASANZ on this to achieve a reasonable and appropriate outcome.

As mentioned previously, the PSPLA has put a dispensation in place for those that are members of HASANZ, which we have understood to mean current NZISM members who are on the HASANZ register. This means that until the PSPLA issues its final decision (after submissions) members are not required to apply for a licence or certificate, and no complaint will be accepted against a member on the HASANZ register on the basis that they are carrying out investigation work without a licence or certificate.

What I want to flag to you again as a member, is that if you are an external consultant offering health and safety investigation or audit services, without being registered on HASANZ, you are potentially in breach of the law. Furthermore, if an employer engages a non-HASANZ registered consultant for health and safety investigation or audit services, there are potential implications as well.

PROGRESS UPDATE - 24th AUGUST 2021

The Private Security Personnel Licensing Authority (PSPLA) was set up to regulate and lift standards for security guards and private investigators. A judgement in June 2020 by the PSPLA has implications for workplace incident investigators. The Authority determined that a consultant who specialises in independent investigations into workplace complaints is covered by the definition of a ‘private investigator’ in the Private Security and Private Investigators Act 2010 (the Act), and so should be licensed under this Act. Under the definition this could potentially include health and safety professionals who undertake workplace investigations, health and safety auditors, and HR Professionals. Note that this judgement relates to consultants external to a company and not advisors who are employees.

We have been working with the Ministry of Justice and the PSPLA on this issue as to whether H&S professionals are covered by the Act. They have agreed to refer the matter to their Complaints, Investigations and Prosecution Unit (CIPUS) for investigation and report. This may involve a hearing and allowing interested parties to make submissions. The PSPLA is then likely to make a formal ruling as to which of the roles fit within the definition of a private investigator and whether any are exempted from holding a licence or certificate under the Act.

In the interim the PSPLA have issued a dispensation to all HASANZ Registered Professionals from applying for a licence or certificate until the matter is resolved. This means until the Authority releases their decision, no HASANZ Registered Professional is required to apply for a PSPLA licence or certificate. In addition, no complaint will be accepted against a HASANZ Registered Professional on the basis that they are carrying out an investigation.

This is good news. It provides us with an opportunity to look at options, including how a professional on the HASANZ Register could be exempt from the PSPLA requirements. We will continue to work with PSPLA and keep you informed of any development.

ORIGINAL BLOG MARCH 2021

There have been some interesting and robust discussions recently regarding the need for those undertaking health and safety investigations to be registered as private investigators under the Private Security Personnel And Private Investigators (PSPPI) Act 2010.

In June 2020, the Private Security Personnel Licensing Authority (PSPLA) issued an important decision regarding the Act. The decision highlighted [14] “…the definition of private investigator to cover all people in the business of carrying out investigations into a person’s character, actions or behaviour…”

It is clear that external Health and Safety Workplace Investigators who don’t hold the correct licence may be found in breach of the Act. There are exceptions to this, including with those conducting in-house workplace investigations not needing a license.

However how does this impact on health and safety auditors, assessors, and similar? There are significant ramifications for those in health and safety roles. The Act provides restrictions on who can obtain information and potentially by definition (under section 5(2)) include health and safety auditors, workplace assessments, SafePlus assessors, and similar. HASANZ requested a legal opinion regarding the requirement for health and safety auditors to hold the required license. It appears there remains some uncertainty regarding the activities that auditors or assessors undertake as part of the activities they perform, and whether it would meet the definition under the Act.

For ACC Accredited Employer Programme Auditors, ACC has been clear and advised that: “ACC’s position is that ACC Approved Auditors (AEP, ACC Fleet Saver) business activities do not fall under the Private Security Personnel and Private Investigators Act 2010 (PSPPI Act) and so they are not private investigators for that purpose.” It was also noted that ACC is not the Crown for purposes of the PSPPI Act. Complicating matters, is the work history, memberships, training, and evidence requirements in order to be a private investigator do not align well with the health and safety activities typical of our members.

At this point, we have no definitive answer in the audit and assessment arena. Not only for those providing consultancy services which might deem them to be private investigators but also for those organisations seeking external audit or assessment support; when might private investigator licensing be required by whom they engage? As the outcome will affect not only NZISM but also all our related associations, HASANZ is taking the lead to provide a definitive answer, and define how that might affect NZISM and our health and safety colleagues. They will be writing to the Minister of Justice to seek clarification on whether any of our members meet the criteria and are required to be private investigators. We will update you as soon as we receive further guidance.

Useful links:

Decision
PSPLA
Act
Employment.govt.nz

Ngā mihi

Robyn Bennett
President, NZISM