Private investigators escape prosecution for working without a licence

Neil MacKay has given expert witness in court trials as a crash investigator.
Robert Kitchin

Neil MacKay has given expert witness in court trials as a crash investigator.

A man whose garage was gutted by fire wants unregistered private investigators punished, after one was hired by his insurance company to look into his claim.

Aucklander James Lochead-MacMillan battled AMI Insurance for five years, after the fire burnt through his garage in 2010.

Investigator Neil MacKay was employed by the company to investigate the fire, and after concluding the cause could not be determined, Lochead-MacMillan was given a partial payout of $65,000.

Neil MacKay works as a fire and accident investigator.
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Neil MacKay works as a fire and accident investigator.

However his insurance was not renewed, and MacMillan later discovered the investigator assigned to his file was working without a private investigator's licence.

READ MORE: Payout for AMI failures

MacKay is self-employed, marketing himself as an investigator of car crashes and accidents, fires, and machine failures.

Neil MacKay has worked for the State of Jersey police, and undertook a fire investigation course in Australia.
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Neil MacKay has worked for the State of Jersey police, and undertook a fire investigation course in Australia.

He has worked as a crash investigator for the States of Jersey Police in the UK, and completed fire investigation training with "various entities".

That included a week-long course into the basics of fire investigation run by Charles Sturt University in Australia.

Mackay wouldn't name the other courses he had done.

Neil MacKay working on the remains of a fire.
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Neil MacKay working on the remains of a fire.

And, he said he wasn't working as a private investigator – and that a historical Yellow Pages listing had mistakenly categorised him as one.

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"Everything I did looking at the fire assessing loss for the insurance company I could have done as an insurance assessor," he said.

There is no legal requirement for a fire investigator to have any set qualification in New Zealand in order to work in the field.

However, there is a requirement to hold a licence if investigations involve private investigator work.

Between 2009 and 2012, MacKay requested copies of 36 fire reports for his insurance company work – despite the Department of Internal Affairs subsequently finding that he should have had a private investigators licence.

Lochead-MacMillan complained to Internal Affairs, his insurance company, the Private Security Personnel Licensing Authority, Police, the Fire Investigators Association and the Independent Forensic Practitioner's Institute about MacKay – but to no avail.

Mackay was given a police warning and the Department of Internal Affairs said despite its investigation recommending MacKay be prosecuted, the chief investigator decided to hold off to "encourage compliance".

Internal Affairs documents show Mackay argued he didn't need a licence because he wasn't a private investigator, but a "forensic practitioner", a "loss adjustor" or a "scientific finder of fact".

In an interview, Mackay said he was not a "usual" private investigator chasing cheating spouses.

"I do specialist fire and crash work. I believed I was exempt [from holding a licence] because if you are doing scientific work you are exempt.

"I got a retrospective licence but that chap is still chasing me ... He wants me out of the industry," he said.

Internal Affairs told Mackay to stop working and apply for a licence – which he was granted in June 2012.

Mackay is a member of the Fire Investigators Association, which represents fire investigators – but doesn't regulate them.

Most fire investigators completed a range of qualifications that did enable them to claim they were professionally trained, association president Ken Legat said – but the course at Charles Sturt was not one of them.

AMI, now IAG, no longer employs Mackay.

The law regulating private investigators came into force in April 2011.

In its first two years, Internal Affairs received 50 complaints involving unlicensed operators – but it only issued seven warnings, and has taken no prosecutions.

Lochead-MacMillan believes the department is being too soft and not doing its job.

"They are just letting people get away.

"It's a total joke when the act requires you hold a licence and suitable training to conduct your role," he said.

However it took him five years to have his request for information returned – which is why he's taking a stand now.

The penalty for operating without a licence is a fine of up to $20,000.

Lochead-MacMillan believed the DIA should be prosecuting and fines imposed.

"If we don't enforce the law what's the point in having it?"

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