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Prima Facie Case: Communication Compelled for Offence Planning
A recent development in New Zealand’s legal landscape has shed light on the circumstances under which individuals’ testimonies can be compelled.
Compelling Testimonies
Section 27 of the Serious Fraud Office Act 1990 removes the common law privilege against self-incrimination when a person is interviewed under section 9 of the Act. In such cases, a self-incriminating statement will only be admissible in a subsequent prosecution if the individual provides evidence inconsistent with their earlier statement. This highlights the importance of careful consideration when dealing with potentially incriminating testimony.
Whistleblowing Framework
New Zealand’s Protected Disclosures (Protection of Whistleblowers) Act 2022 has introduced a robust framework for whistleblowing, promoting the disclosure and investigation of serious wrongdoing. The Act defines “serious wrongdoing” as including:
- Offences
- Risks to health, safety, or the environment
- Corrupt use of public funds
- Discriminatory conduct by public officials
Protected whistleblowers are shielded from retaliatory action and enjoy:
- Confidentiality
- Immunity from legal proceedings
- Remedies for victimization under the Human Rights Act 1993
However, there are exceptions to maintaining whistleblower anonymity, including instances where disclosure is deemed essential for investigating allegations or preventing harm.
Employee Rights
Employment law in New Zealand grants significant rights to employees whose conduct is within the scope of an investigation. The test of justification in section 103A of the Employment Relations Act 2000 assesses whether employer actions were reasonable and fair, considering factors such as:
- Resources available
- Thorough investigation
- Employee response opportunities
Company directors who are also employees enjoy the same protections as non-director employees, while those who are not may only be entitled to contractual obligations. Employees suspected of misconduct must be treated fairly, with principles of natural justice applying to their case.
Disciplinary Action
When an employee is implicated or suspected of misconduct, employers must follow a fair process, including:
- Advising the employee of allegations
- Providing a reasonable opportunity to respond
- Considering explanations before concluding disciplinary action
Suspension may be necessary if the employer cannot conduct a proper investigation while the employee remains in the workplace.
Dismissal for Refusal to Participate
Employees who refuse to participate in an internal investigation can be subject to disciplinary action, but dismissal is likely only justified in cases where the refusal obstructs a serious investigation or is repeated.
Internal Investigation Best Practices
Preparing a terms of reference document before commencing an internal investigation is considered best practice. This document should cover key aspects such as:
- Matters to be investigated and scope
- Purpose of the investigation
- Confidentiality expectations
- Relevant policies and procedures
- Interview protocols
- Report format and distribution
Prior Notification
If a issue comes to light prior to authorities becoming aware, it is crucial to investigate promptly and report findings accordingly. Delayed notification can result in compromised evidence and hinder the investigation process.
Stay tuned for more updates on this developing story.