Appendix 3
Other forms of penalty

Civil infringement notices

The Telecommunications Act 2001 and the Unsolicited Electronic Messages Act 2007 both contain “civil infringement notices”, which allow an expedited penalty process in place of seeking a civil pecuniary penalty in the High Court.720  In these regimes the regulator, or authorised officers working on its behalf, may issue a notice stating the monetary penalty payable which, if paid, avoids the need to go to court. The regulators have a choice between instituting civil penalty proceedings or issuing a civil infringement notice. The Telecommunications Act 2001 is explicit as to the matters the regulator must take into account when deciding what enforcement action to take, such as the seriousness of the alleged breach.721
Notices must be in a prescribed form set down in regulations722  and must be issued within 12 months after the day on which the alleged breach occurred. The penalty amount in notices issued under the Telecommunications Act 2001 is fixed at $2,000, whereas the Unsolicited Electronic Messages Act 2007 sets the penalty, per “civil liability event”, at $200 for individuals and $500 for organisations.723  There is an opportunity to make submissions or objections to the notice and a right of appeal to the District Court.
The civil infringement notice is intended to act as an alternative to a court-imposed civil penalty. The Telecommunications Act 2001 provides that the Commerce Commission may either serve a civil infringement notice or apply to the High Court for an order to pay a pecuniary penalty, and that a non-compliance notice may not be issued if civil penalty or criminal proceedings have already been commenced in respect of the same conduct.724  The Unsolicited Electronic Messages Act 2007 provides that payment of a penalty in a civil infringement notice is a bar to later civil penalty proceedings.725
720Telecommunications Act 2001, ss 156D–156K, Unsolicited Electronic Messages Act 2007, ss 24–33. See also Therapeutic Products and Medicines Bill 2006 (103–1), cls 89–95.
721Telecommunications Act, s 156C.
722Telecommunications (Civil Infringement Notice) Regulations 2007, Unsolicited Electronic Messages Regulations 2007. See also Therapeutic Products Bill 2006 (103–1), cl 95 which provides for the enactment of regulations prescribing the form of non-compliance notices.
723Unsolicited Electronic Messages Regulations 2007, reg 7. See also Therapeutic Products Bill 2006 (103–1), cl 92(2).
724Telecommunications Act 2001, s 156B. See also Therapeutic Products Bill 2006 (103–1), cl 93: a non-compliance notice (if paid) is a bar to both civil penalty and criminal proceedings.
725Unsolicited Electronic Messages Act 2007, s 29(2)(b).