The Law Commission of New Zealand has released an Issues Paper on the use of financial penalties
by enforcement agencies to punish corporations and individuals for breaches of the law:
"Chapters 1 and 2 of the Issues Paper set out the existing
landscape. The Commission notes that a first principles review of civil
pecuniary penalties is needed because of: (a) their comparative
novelty; (b) the inconsistencies in the design of the existing regimes;
(c) concerns that they illegitimately blur the traditional distinction
between the civil and criminal law; and (d) experience in other
jurisdictions, particularly Australia, where courts have imposed
additional 'quasi-criminal' protections on their imposition."
"Chapter 3 of the Issues Paper is concerned with the nature and
validity of civil pecuniary penalties. The Commission assesses where
civil pecuniary penalties sit against the traditional criminal-civil
divide. It concludes that they are a 'hybrid' action and takes the
position that while such hybrids have a valuable role to play, there
must be robust policy justifications for their use. Chapter 4 critiques
those policy justifications."
"The third part of the Issues Paper is concerned with matters of
legislative drafting and design (...)
"Chapter 6 deals with the 'critical' design questions of: the rules
of evidence and procedure that should apply; the standard and burden of
proof; the privilege against self-exposure to a non-criminal penalty;
double jeopardy; and intent and defences."
"Chapter 7 deals with other issues of design including: who should be
able to seek and impose penalties; how penalty maximums are set in
legislation; what guidance should be given to the Court; appeal rights;
and limitation periods."
The document examines the situation in a number of other jurisdictions, including Australia, the United Kingdom, Canada, the United States and Germany.
Labels: civil liability, comparative and foreign law, courts, government_New_Zealand, law commissions, litigation