Guidance for future pecuniary penalty regimes
The need for effective guidance
2.3At present 18 statutes contain pecuniary penalties. Each deals to a greater or lesser extent with matters such as:
- the rules of court and standard of proof;
- the fact that the penalty is paid to the Crown, and is to be enforced as a civil debt;
- factors to be taken into account by the court when setting a penalty;
- double jeopardy;
- the staying of pecuniary penalty proceedings;
- limitation periods on bringing pecuniary penalty proceedings;
- evidential issues; and
- the relationship between compensatory, remedial, or cost recovery orders and pecuniary penalties.
2.4Few statutes deal with these issues in the same way. There are differences in both substance and the approach to drafting. The Law Commission supports the general interest in achieving, where possible, consistency in legislation for a number of reasons:
- Consistency in the way legislation deals with similar issues can reduce the weight of litigation that may result from the court needing to interpret the meaning and import of differently designed pecuniary penalty provisions.
- Consistency in legislation encourages the development of a consistent body of practice and case law that will make the law easier to understand and adhere to for individuals and businesses.
- Promotion of regulatory efficiency is likely to be encouraged, as enforcement bodies will develop a better understanding of how their (sometimes numerous) pecuniary penalty statutes are to be implemented.
- Adopting a common approach reduces the need for each agency and legislative drafters to negotiate and “reinvent the wheel” each time a new pecuniary penalty regime is considered.
- Transparency can also be boosted. The presumption that a common approach will be adopted is likely to encourage open debate about why, in a given case, there should be a departure from that common approach.
2.5We do not consider that consistency must be achieved at all costs. Nevertheless, some aspects of legislative design are a product of, and should be driven by, the distinctively punitive nature of pecuniary penalties. A common approach should be taken to those aspects.
2.6Without effective guidance and direction, the existing degree of inconsistency between regimes is likely to continue. In fact, the range of variants may well expand. At present, policymakers contemplating pecuniary penalty regimes have 18 New Zealand precedents to turn to, from which they can pick and choose provisions and tailor them for their particular statute. In excess of 50 Australian statutes now contain pecuniary penalties, and in a diverse range of fields. Although New Zealand may not adopt pecuniary penalties in all those same fields, we anticipate that the number of pecuniary penalty provisions will grow.