The merits of a criminal penalty regime are that for some people it reflects the seriousness with which they view professional spammers that send out millions of junk emails to market various goods or services. … A criminal penalty regime was not, however, favoured by the majority of respondents to the Government's discussion paper as a civil penalty regime was seen as a more appropriate way of dealing with the simple issue of electronic messages sent without consent. Where spam is used as a means to commit acts such as fraud or inflicting damage to another person's computer network there are already criminal sanctions in place to deal with this more serious level of conduct.
4.38There is some suggestion in this that civil pecuniary penalties are appropriate because the “simple issue” of electronic spam does not justify criminal sanction. Is there an argument, then, that civil pecuniary penalties are appropriate for a wider range of less serious contraventions? And if so, what do we mean by “less serious”? For example, is it less serious because less harm results? Where the Unsolicited Economic Messages Act 2007 is concerned, is the implication that the harm that results – perhaps mere irritation – justifies the use of civil rather than criminal sanctions? And what else is relevant to an assessment of what is “less serious” offending? Might most non-intentional breaches fall into this category?
4.39The Commission has concerns about whether it is appropriate or feasible to use gradations of “harm” to justify the introduction of civil pecuniary penalties. As noted at the outset of chapter 3, a wide range of behaviour which results in a similarly wide range of comparative harm is marked as criminal. An effort to single out conduct which is liable to criminal rather than civil condemnation purely on the basis of harm may appeal to a sense of order. But any such assessment necessarily involves a value judgment, which will differ between people and over time. An extensive degree of decriminalisation of minor offending has been achieved already by the infringement offence procedure. It is the minor (in terms of penalty) and high volume nature of such offences which assist in justifying this decriminalisation. The harm that could result from some infringement offences (for example speeding) is in fact considerable. In comparison, a low degree of harm does not accurately characterise many of our existing civil pecuniary penalties. The harm – for example, the loss of a person’s life savings – that can follow from inaccurate disclosure in investment documents can be very considerable. Equally, the harm that could result to New Zealand’s economy from an inability to export agricultural products because of a breach relating to genetically modified organisms or biosecurity could be extremely severe.
4.40There are circumstances where the degree of harm that results from an activity will clearly warrant criminalisation. An example is where the harm is such that protective measures such as arrest, remand in detention and incarceration are necessary. It follows that there may be an argument that any guidelines or statute should make it clear that civil pecuniary penalties are never justifiable when such protective measures might be necessary. However, the line between whether and when criminal or civil sanctions should be used for other types of contravention would be hard to draw.
4.41To what extent can and should delineating levels of seriousness assist in justifying the use of civil pecuniary penalties? And how relevant is it that any attempt to articulate a degree of seriousness which lends itself to civil rather than criminal punishment could lead to an argument for the use of civil pecuniary penalties for a substantial proportion of existing criminal offending? This would signal a substantial reordering of the way we categorise and punish illegal behaviour. It would also have practical consequences. For example, it would shift a considerable amount of criminal court work to the civil jurisdiction.
4.42Also, to what extent might the broader use of civil pecuniary penalties have an impact on their design? To what extent should their procedural provisions be influenced by (a) the type of defendant and (b) the type of behaviour they are targeting? If a form of sanction only targets well-resourced corporate offenders operating in industries which are closely regulated, then it may be justifiable to allow some inroads into orthodox criminal procedural protections. However, if the sanction were to target more traditional criminal conduct, which tends to be carried out by individuals who are likely to be less well-resourced and in a position of considerably less power than the State, then perhaps greater protections should apply.
4.46Secondly, there is no reason why this argument could not be made for the abandonment of criminal proceedings for all offending. The cost and efficiency arguments can only be sound if they are accompanied by other justifications for civil pecuniary penalties.
4.49Notwithstanding this, we query the extent to which international alignment justifies the inclusion of civil pecuniary penalties in statutes. While there may be a need for the alignment of rules between different jurisdictions in the interest of promoting the accessibility of markets and ease of trade, it does not necessarily follow that the form and design of penalty needs to be the same. Indeed, civil pecuniary penalties imposed by a court feature only in a handful of jurisdictions. The trend in the United Kingdom and the United States, for example, is to hand greater enforcement powers to the regulators themselves.
4.50The format of a particular legislative regime is often repeated in later legislation because officials become familiar with it and because it is perceived to provide an effective and appropriate response. We suggest that the fact that precedents exist in other legislation will rarely be an adequate reason on its own for the inclusion of a civil pecuniary penalty regime in a statute.