Contents

Appendix 3
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 Act693  and $200,000 under the Electricity Industry Act.694  The penalties differ from civil pecuniary penalties only in that they are not imposed by the High Court and the maximum penalties are less.695
According to the Electricity Authority696  and decisions published on the Electricity Panel’s website,697  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 2008.698
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,699  and an affected industry participant can appeal a decision for lack of jurisdiction.700  The Electricity Authority or an industry participant may appeal a pecuniary penalty order or the quantum of any order.701  Under the Gas Act, any person can appeal a decision on a question of law;702  and an affected industry participant can appeal a decision for lack of jurisdiction.703  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).704
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.705  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.706   These powers comply with suggestions of the Law Commission in its 2008 report on tribunal reform.707
693Gas Governance (Compliance) Regulations 2008, reg 52.
694Electricity Industry Act 2010, s 54.
695Although the Electricity Rulings Panel has previously suggested the penalty available to it is comparatively low: see for example Electricity Rulings Panel In the Matter of a hearing on a formal complaint against Meridian Energy Ltd (22 November 2010) at [94].
696Email from Ross Hill (General Manager Legal and Compliance, Electricity Authority) to Susan Hall (Law Commission) (24 February 2012).
697<www.ea.govt.nz>.
698<www.gasindustry.co.nz>.
699Electricity Industry Act 2010, s 64.
700Above, s 63.
701Above, s 65(1)(b).
702Gas Act 1992, s 43ZA.
703Above, s 43ZC.
704Above, s 43ZD.
705In Kelly v Legal Services Agency (2004) 17 PRNZ 449 (HC)Williams J found that r 718 of the High Court rules (now covered by r 20.18) would apply to appeals to the High Court brought under s 59 of the Legal Services Act 2000, which did not otherwise specify the nature of the appeal: at [9].
706Gas Act 1991, ss 43ZF–43ZH, Electricity Industry Act 2010, ss 67–68.
707Law Commission Tribunal Reform (NZLC SP20, Wellington, 2008) at [8.34].