Private Investigators - All You Need To Know
Private Investigators - All You Need To Know
The Role of Private Investigators
Insurance Agents will sometimes employ private investigators to assess whether injured workers are being genuine about their claims. These investigators are often used unfairly and without any proof that injured workers are exploiting the WorkCover process. This page is made to inform you about what the law says about when and how WorkSafe and its insurance agents can use private investigators and where you can go when you believe they are acting unfairly.
The most important thing to remember is that you have no legal obligation to speak to private investigators. If a private investigator wants to talk to you, do not make a statement and seek legal advice either from Union Assist or your solicitor.
What is a Private Investigator?
A private investigator is a private detective who can be hired to make investigations into breaches of the law. WorkCover is actually one of the main employers of private investigators in Australia.
What does WorkSafe use them for?
According to the WorkSafe website, they are used to assist in:
- assessing liability
- determining common law entitlement
- determining entitlement in other litigated matters
- establishing whether there has been scheme abuse.
In other words, they are used to figure out whether workers are lying about their claims or whether an employer is at fault in a common law claim. However, this interpretation is used very loosely and oftentimes private investigators will choose to investigate a claimant on a hunch with no evidence of wrongdoing. Testimony from a former private investigator for WorkCover claimants proves this. This is some of the ‘evidence’ for fraud insurance agents gave to justify surveillance:
"Her tone of voice last time we spoke was really suss”
"I just get the sense there's something dodgy about him”
The insurance agent picks which private investigation firm it wants to go with from a list of WorkSafe’s registered firms. It is the insurance agent that is responsible for paying PI’s and making sure they follow the law. This is an issue because insurance agents also have a personal stake in kicking workers off WorkCover claims!
Where can I report a Private Investigator? What can I report them for?
If a private investigator is behaving unlawfully, you can report them by completing and submitting an online complaint form here or by calling the fraud and non-compliance hotline on 03 9641 1051 to make a complaint over the phone. Remember, for your complaint to be as effective as possible you need to provide well documented evidence – photos, recordings, message – of a private investigator violating WorkSafe’s Private Investigator Code of Practice or other relevant Commonwealth laws, a list of which can be found in section 4.1 of the Code of Practice.
What rules are Private Investigators bound by
Private investigators must comply with WorkSafe’s Code of Practice for Private Investigators. A private investigator needs to disclose any conflict of interest they have as soon as it becomes aware that the conflict exists. Under the Code of Practice, there are a number of limitations placed on private investigators. Although these are often not followed, it is important for injured workers to know what the legislation says to provide for recourse if the investigator is acting unethically. Below is a list of key clauses in the code. Remember, this isn’t exhaustive. Read the code in full by clicking the link above and going to Section 5.1:
- In addition to the code, private investigators must comply with all State and Commonwealth laws.
- A provider must not make any threat, or promise, offer any inducement to any person when conducting an investigation.
- A provider must only collect information relevant to its investigation.
- A provider must make and keep written contemporaneous records of all investigation activities in a separate bound ‘day book’, which is to be retained for 7 years. There are a number of details that this day book must include, see page 7 of the code.
- Save for when a requirement is made under the Private Security Act 2000 (VIC) or clause 5.2.6 of the Code, a private investigator must not communicate with any person (including the subject, a neighbor, work colleague or other acquaitance of a subject), in a way which might directly or indirectly reveal that surveillance is being, will be or has been conducted of that subject, or imply that the subject is involved in dishonest conduct.
- If a private investigator knows that a subject is legally represented, it must make all reasonable efforts to contact the legal representative to obtain consent to interview the subject.
- A private investigator must comply with any reasonable restrictions placed on an interview by the injured worker or their legal representative.
- In relation to the use of social media for investigation purposes a provider must not:
- Use illegal or dishonest means to obtain information from an electronic source, including any databse or social media.
- Cause any unauthorized access or modification of restricted data held in a computer (hacking)
- Create false profiles or accounts to entrap or mislead an injured worker eg. Sending friendship requests or private messages.
- Request family, friends, colleagues or any other third party to gain access to a private account on their behalf, or otherwise use the social media accounts of such people to gain access;
- Collect information or material from social media unless that information or material is publicly available and is relevant to the investigation.
Mental Injury Claims
Private Investigators also have other legal requirements if you have a mental health injury. It’s important to remember these as you have the rights even when you are under investigation. Keep an eye out an make sure your private investigator is doing the following:
- Private investigators are required to have obtained a certificate of competency from a WorkSafe approved training program such as Applied Suicide Intervention Skills Training.
They need to:
- Have a minimum of 5 years' experience and the relevant training.
- Offer you the option of being interviewed by an investigator of the same sex
- Advise and encourage you of your right to have an independent representative or support person during an interview. If you choose to have a rep or support person, they can’t conduct the interview until they are there.
- Confirm appointments in writing and tactfully and carefully tell you what to expect during the interview.
- At all times consider your demeanor and mental state and determine if its appropriate to commence or continue the interview.
- Clearly outline your rights and advise of the following:
- Your right to terminate or reshcedule the interview, at any time:
- Your right to suspend the interview to have a break at any time;
- Your right not to answer a question that is put to you;
- That the PI isn’t responsible for making decision related to your claim and that they are asking a wide range of questions so that the agent can make decisions relating to your claim.
- Not let the interview for longer than 4 hours plus half an hour of reading through and signing statements.
Private Investigators – Used Unfairly and Unjustifiably
Private Investigators are often used in situations where the is little to no evidence of fraud taking place. This exacerbates or creates new psychological injuries for workers that are already vulnerable and at risk of feeling socially isolated. The testimonies of private investigators and injured workers corroborate this, with many expressing fear and anger around being stalked and harassed by these investigators. The stories of private investigators themselves also confirms this. One private investigator notes that “less than 10 percent of the people I followed appeared to be doing something that contradicted their claim. Given the immense harm that being under investigation while injured can cause, urgent reform is needed. Therefore the Injured Workers Support Network is calling for:
- An independent body that is part of WorkSafe to be created that the agent has to apply for if they want to use surveillance
- For the agent to be successful, they have to meet a high bar and demonstrate a genuine suspicion that some form of fraud is occurring that can only be justified by surveillance and not another form of investigation.
That surveillance be regularly reviewed during the process regardless of whether or not a complaint is made.
In addition to this, a lack of training for claims managers and a culture of profit seeking is contributing to the willingness to resort to private investigators. Private investigators report being given the wrong address by claims managers or being sent to investigate the wrong claimant. WorkSafe claims managers have very low levels of experience when compared to workers' compensation schemes elsewhere. The average WorkSafe claims manager is in their late 20s and has worked in the profession for approximately 2 years. This is compared to the British Columbia scheme in Canada – which has some of the best outcomes for injured workers in the world – where case managers have an average of 8.1 years' experience, 13.3 years within the workers compensation space and an average of 46.5. Because of this, The Injured Workers Support Network is also calling for a full implementation of the Rozen Review’s recommendations for Recruitment and Training outlined on page 241 under “Recruitment and Training”.