What are civil pecuniary penalties?
1.3In this Issues Paper we use the term “civil pecuniary penalties” to describe certain monetary penalties on the New Zealand statute book that are imposed and enforced through non-criminal processes. The civil pecuniary penalties that concern us share the following characteristics:
- They are imposed by the High Court after a civil trial, according to the rules of civil procedure and evidence;
- Liability is established on the civil standard of proof – that is, the balance of probabilities;
- They involve very substantial maximum financial penalties;
- Payment of the penalty is enforced in the civil courts, as a debt due to the Crown;
- Neither imprisonment nor criminal conviction can result.
1.4An example of a civil pecuniary penalty can be found in the Hazardous Substances and New Organisms Act 1996, s 124B which provides:
(1) The enforcement agency may apply to the Court for an order that a person pay to the Crown a pecuniary penalty under this Act.
(2) The Court may make the order if it is satisfied that the person—
(a) developed, field tested, imported, or released a new organism in breach of this Act; or
(b) possessed or disposed of any new organism imported, developed, or released in breach of this Act; or
(c) failed to comply with any controls relating to a new organism—
(i) imposed by any approval granted under this Act; or
(ii) specified in regulations made under this Act.
1.5Section 124C(1) states:
(1) The Court must not make an order for the payment of a pecuniary penalty that exceeds,—
(a) in the case of an individual, $500,000; or
(b) in the case of a body corporate, the greater of—
(i) $10,000,000; or
(ii) if it can be readily ascertained and if the Court is satisfied that the contravention occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or
(iii) if the commercial gain cannot be readily ascertained, 10% of the turnover of the body corporate and all of its interconnected bodies corporate (if any).
1.6In chapter 2, we describe the range of civil pecuniary penalties in greater detail.