Other forms of penalty
Non-judicial variable penalties
As described in chapter 7, the Gas Act 1992 and Electricity Industry Act 2010 provide for variable pecuniary penalties to be imposed by Rulings Panels, up to a maximum of $20,000 under the Gas Act and $200,000 under the Electricity Industry Act. The penalties differ from civil pecuniary penalties only in that they are not imposed by the High Court and the maximum penalties are less.
According to the Electricity Authority and decisions published on the Electricity Panel’s website, the Electricity Rulings Panel has imposed five civil penalties since 2005, ranging in size from $1,000 to $17,500. Only one civil penalty, of $18,900, has been imposed by the Gas Rulings Panel, out of five decisions concerning an alleged breach since 2008.
Legislation specifies the appeal route for such penalties: in both instances, appeals may be made as of right to the High Court. Under the Electricity Industry Act, any person can appeal a decision on a question of law, and an affected industry participant can appeal a decision for lack of jurisdiction. The Electricity Authority or an industry participant may appeal a pecuniary penalty order or the quantum of any order. Under the Gas Act, any person can appeal a decision on a question of law; and an affected industry participant can appeal a decision for lack of jurisdiction. Unlike in the Electricity Industry Act there is no specific provision stating that a pecuniary penalty order or amount may be appealed (although there are for suspension and termination orders).
Neither Act specifies the nature of the appeal, so appeals will be by way of rehearing, under r 20.18 of the High Court Rules. In determining an appeal, the High Court has broad powers, including to confirm, modify or reverse the decision or any part of it; to exercise any of the powers that could have been exercised by the Rulings Panel; or to refer appeals back to the Rulings Panel for reconsideration. These powers comply with suggestions of the Law Commission in its 2008 report on tribunal reform.