Prima Facie Case: When Can an Individual’s Testimony Be Compelled?

In New Zealand, 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. This means that an individual’s testimony can be compelled in certain circumstances.

When Can Testimony Be Compelled?

• A self-incriminating statement made during an interview will only be admissible in a subsequent prosecution if the individual gives evidence inconsistent with their earlier incriminating statement.
• New Zealand law recognizes a robust right against self-incrimination, and where not explicitly excluded, individuals have the right to refuse to provide testimony that may incriminate them.

Whistleblowing Framework: Protection and Incentives

The Protected Disclosures (Protection of Whistleblowers) Act 2022 came into force on July 1, 2022, promoting the disclosure and investigation of matters of serious wrongdoing. The Act defines “serious wrongdoing” as including:

• Offences
• Risks to health or safety
• Environmental harm
• Corrupt use of public funds
• Grossly negligent conduct

Whistleblowers are protected against retaliatory action and enjoy:

• Confidentiality of identity
• Immunity from civil, criminal, and disciplinary proceedings
• Remedies for victimization under the Human Rights Act 1993
• However, there is no financial incentive scheme in New Zealand for whistleblowers.

Employee Rights During Investigations

When an investigation is conducted into potential wrongdoing within an organization, employee rights are governed by the test of justification in Section 103A of the Employment Relations Act 2000. This test assesses whether any employer action was what a fair and reasonable employer could have done in all circumstances.

In cases where an investigation leads to the dismissal of an employee or other adverse action, the Employment Relations Authority will consider factors such as:

• The resources available to the employer
• Whether sufficient investigation was conducted
• Whether the employer raised concerns fairly with the employee

Conducting Investigations

When conducting internal investigations, it is best practice to prepare a terms of reference or scoping document outlining:

• The purpose and scope of the investigation
• Confidentiality expectations
• Limits of the investigation
• Interview procedures
• Expected time frames

If an issue comes to light prior to authorities becoming aware, companies must consider whether they have a legal obligation to report it to the relevant authorities.

Refusal to Participate in Investigations

Employees are required to follow lawful and reasonable instructions from their employers. A refusal to participate in an internal investigation can be considered a disciplinary matter, and dismissal may only be justifiable if it obstructed a very serious investigation or was a repeated refusal.

In conclusion, while individuals’ testimony can be compelled in certain circumstances, whistleblowers are protected by law against retaliatory action. Employee rights during investigations are governed by the test of justification, and companies must prepare thorough terms of reference documents before conducting internal investigations.