Chapter 2
Guidance for future pecuniary penalty regimes

Review of existing pecuniary penalty statutes

2.25In this Report, we make one specific recommendation for statutory amendment, relating to the “penalty privilege” discussed in Chapter 10. It is in this area that existing statutes commonly depart from our proposals, and those departures could have an immediate and material impact on individual rights and interests.

2.26However, in a number of other areas existing statutes are silent on or depart, to a greater or lesser degree, from the best practice set out in our Guidelines. As we noted in our Issues Paper, this was inevitable because of the inconsistent approaches taken in existing legislation. It is undesirable because existing statutes tend to become de facto precedents for new regimes, enabling agencies to pick and choose their favoured approach and tailor it to their needs. While some tailoring might be desirable, the current situation encourages the number of variants to multiply.

2.27We recommend, then, as statutes that already contain pecuniary penalties come up for review, their existing provisions should be reassessed in light of the Guidelines in this Report. Where inconsistencies cannot be justified, we recommend that those inconsistencies be removed when the statutes are amended.

2.28In time, the unjustifiable variation that is currently a feature of pecuniary penalty regimes will be removed from the statute book.