Chapter 9
The penalty privilege


9.7Submitters were in two camps on this question. Five favoured the reintroduction of the penalty privilege for pecuniary penalties.165 In particular, Bell Gully noted that the privilege against self-incrimination is one of the key safeguards upon which the integrity of the criminal law depends. In Bell Gully’s view, if a party could at some point in the future face quasi-criminal proceedings under a regulatory statute, he or she should be entitled to invoke the penalty privilege.
9.8Six submitters did not support recognising a penalty privilege.166 They voiced three concerns. First, they thought it would undermine the efficacy of pecuniary penalties as a regulatory tool. Secondly, a number noted that reintroduction of the privilege would impair the ability of private plaintiffs to pursue actions for compensation in those regimes where such actions can be taken alongside pecuniary penalty proceedings. Thirdly, some noted that the protection of the privilege was not warranted because of the lack of risk of conviction and imprisonment. We address these concerns below.
165The New Zealand Law Society, Bell Gully, Business New Zealand, Federated Farmers, and one individual.
166Ministry for Primary Industries, Financial Markets Authority, Donald Mathieson QC, Meredith Connell, the New Zealand Bar Association, and one individual.