Officer Due Diligence After Gibson and Whakaari and HSWA Amendment 2026

A Five-Stage Verification Framework

Abstract

Abstract

New Zealand's officer due diligence duty under section 44 (hereinafter referred to as s 44) of the Health and Safety at Work Act 2015 requires reasonable steps to verify that a person conducting a business or undertaking provides and uses the resources and processes needed for compliance. However, neither the Act nor the case law clearly defines where governance assurance ends and operational management begins. This article examines that boundary drawing on the recent Court cases: the Gibson case, which demonstrates that formal systems may be insufficient where warning signs undermine confidence in implementation, and the Whakaari case, which emphasises duty-holder identification and individual proof. It argues that officers must obtain and critically test credible assurance and respond when the boundary between governance and operations weakens. The article proposes a five-stage verification cycle: Ask, Receive, Test, Follow Up and Escalate. The framework is a conceptual synthesis of statute, case law and safety-science scholarship and an evidence-informed compliance model proposed to establish and verify due diligence. However, it is not a standalone tool, but rather a proactive risk management system.