20.1We have made reference in this Report to the need for enforcement bodies to provide guidance on how they will enforce their regimes. The following enforcement agencies (or agents) can commence pecuniary penalty proceedings:
20.2In some cases, these bodies have been established specifically for the purpose of overseeing one or more statutory regimes. They have broad functions relating to the promotion of confidence in their regimes, providing information and promoting understanding of the relevant law, monitoring compliance, investigating conduct and conducting inquiries. In other cases, the enforcement role has been given to a more generally tasked body and is one of a very wide range of matters with which they are tasked. They all have a range of investigatory powers at their disposal.
20.3In all cases these agencies need to make decisions about whether and when to commence proceedings, which enforcement route to take (where they have options) and how to approach settlement negotiations.
20.4Public and industry confidence in the agencies will be helped by transparent, consistent and responsible use of their broad powers. A number of these agencies already operate under and publish their own enforcement guidelines and policies to ensure consistency and transparency on the factors that will be taken into account when an enforcement decision is made.
20.8We recommend, then, that other enforcement agencies should follow suit. As a minimum, their policies should deal with how the agency will decide whether or not to commence court proceedings; where it has the choice, how it will determine whether to commence civil or criminal proceedings; and how it will decide to enter into negotiations for settlement and what process it will follow. Where relevant, agencies may wish to consider whether their guidance should vary depending on whether an individual, body corporate or Crown defendant will be involved. To illustrate, where pecuniary penalties arise in areas of Crown activity that require weighing factors such as broad ministerial discretion with the public good, a decision to take enforcement action will be much more complex.
R9 Enforcement agencies with the power to commence pecuniary penalty proceedings should develop and publish enforcement policies.