Role of pecuniary penalties
5.42Some practical considerations need to be addressed when a determination is being made as to what type or types of penalty should be included in a regime. Most notably, any proposal for a pecuniary penalties regime will need to identify an adequately resourced enforcement body or agent, which should make its decisions as to investigations and proceedings independently. At present, most statutes provide for pecuniary penalties to be sought by independent statutory bodies, such as the Commerce Commission, Financial Markets Authority and Takeovers Panel. Under other statutes, the role of commencing proceedings is given to the chief executive of a department or ministry, or in the case of the Unsolicited Electronic Messages Act 2007, to the Department of Internal Affairs.
5.43One pecuniary penalty statute – the Telecommunications (Interception Capability and Security) Act 2013 – provides for the Police to investigate conduct that might lead to a pecuniary penalty, and to commence the proceedings. That Act also provides for the New Zealand Security Intelligence Service, Government Communications Security Bureau and “a specified law enforcement agency within the meaning of section 50 of the Search and Surveillance Act 2012 that is approved by an Order in Council under that section to use interception devices”, to be enforcement agencies for the purpose of pecuniary penalty proceedings. It may be argued that this approach makes sense in the context of that Act as the breach involved (serious non-compliance with duties under the Act or contravention of a compliance order) may come to the attention of the Police during the conduct of its normal practices. However, outside of those circumstances, it would be very unusual for the Police to be given this role. It follows that pecuniary penalties will not be appropriate where a suitable enforcement agency cannot be identified.
5.44A further practical consideration is the operational limitation of pecuniary penalties being enforced as civil debts. This means that the tools available for the enforcement of criminal fines – including the seizure of property and making compulsory deductions from income or a bank account – are not available. Pecuniary penalties are likely to be ineffective, then, against people who cannot afford to pay.
5.45In contrast, there should be caution against a view that cost savings can be made by the use of pecuniary penalties, without clear evidence. It might be thought that pecuniary penalties present an option for reducing the burden on the criminal justice system. However, the alternative view is that the growth in pecuniary penalties will increase the burden on the court system as a whole. This may be particularly the case where it is anticipated that regulators are more likely to take pecuniary penalty proceedings than criminal ones. Furthermore, where pecuniary penalties are introduced instead of criminal offences, the exercise will have the effect of merely shifting costs from the criminal to the civil justice system. Therefore it is unclear whether and to what extent cost savings will occur, particularly since, at present, most pecuniary penalties are High Court matters.