If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound.
No enactment binds the Crown unless the enactment expressly provides that the Crown is bound by the enactment.
There is, I think, the strongest presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature. It is opposed to all our conceptions, constitutional, legal and historical. Conceptions of this nature are, of course, not immutable and we should beware of giving effect to the strong presumption in their favour in the face of some clear expression of a valid intention to infringe upon them. But we should at least look for quite certain indications that the legislature had adverted to the matter and had advisedly resolved upon so important and serious a course.
The increasing trend of government participation in what may be generally described as areas of social welfare legislation would suggest that the inclusion of the Crown within the scope of general criminal liability must be increasingly accepted. I do not as yet, however, see any tendency to recede from the proposition that the Crown is only to become liable, either criminally or civilly, where it is abundantly clear that the legislature has intended such a result.
19.21However, Southland Acclimatisation Society remains the current authority in New Zealand. This suggests the desirability of an express statutory statement, either positive or negative, on the issue of Crown liability under a pecuniary penalty regime, to put the matter of parliamentary intent beyond doubt.
19.22Of the current pecuniary penalty statutes, the Commerce Act 1986 arguably meets the “abundantly clear” standard that would make the Crown potentially liable to pecuniary penalties (to the extent that any Crown agent engages in trade), although even this statute could go further and include a positive statement that the Crown is liable to pay pecuniary penalties other than under section 80, to balance the statement that the Crown is not liable to pay a pecuniary penalty under section 80.
19.23The Unsolicited Electronic Messages Act 2005 also contains statutory indicators of Crown liability: a “person” is defined to include an individual and an organisation; “organisation” expressly includes a government body; “government body” includes a department as listed in Schedule 1 of the Ombudsmen Act and a Crown entity under the Crown Entities Act 2004. Under section 45, if the perpetrator of a civil liability event is an “organisation”, the court may apply the higher maximum penalty level ($500,000). Nevertheless, there is potential for argument as to whether this is “abundantly clear”. Express legislative statement may be desirable if the intent was to impose liability on the Crown for a civil liability event.
19.24Other statutes, such as the Biosecurity Act 1993 and the Hazardous Substances and New Organisms Act 1996, purport to bind the Crown and include the Crown in the definition of a “person”, suggesting that the Crown is covered by the pecuniary penalty provisions. However, given the strength of the statutory presumption, even this interpretation may be insufficiently clear. Therefore, when reviewing existing pecuniary penalty statutes, the opportunity should be taken to assess whether there is sufficient clarity and certainty about the liability of Crown organisations, and whether any statutory clarification may be desirable.
At common law the question whether a person is an agent or servant of the Crown depends on the degree of control which the Crown, through its ministers, can exercise over the performance of his or its duties. The greater the control, the more likely it is that the person will be recognized as a Crown agent. Where a person, human or corporate, exercises substantial discretion, independent of ministerial control, the common law denies Crown agency status. The question is not how much independence the person has in fact, but how much he can assert by reason of the terms of appointment and nature of the office.
19.28One example of express advertence is section 6 of the Commerce Act:
19.30It is desirable for pecuniary penalty statutes to be as specific as possible about their application to the Crown and the resulting consequences: simply stating “this Act binds the Crown” is not sufficient.
19.31Each pecuniary penalty statute should state clearly and expressly:
19.33In relation to setting maximum penalty levels, the “percentage of turnover” formulation will not be appropriate in relation to the Crown and State sector defendants.