New Zealand Law Commission Paper on Civil Pecuniary Penalties

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.