What circumstances might justify the use of civil pecuniary penalties?
Regulation and civil pecuniary penalties
4.4Civil pecuniary penalties are thought appropriate in “regulatory” contexts, for use against regulatory contraventions, or to encourage regulatory compliance. The Ministry of Justice draft consultation paper stated:
Civil penalties can be used when the regulator wants to protect the public interest by encouraging regulatory compliance and also penalise those individuals who are operating in breach of a highly regulated environment.
4.5A 2003 Cabinet paper on genetically modified organisms and the possibility of introducing civil pecuniary penalties into the Hazardous Substances and New Organisms Act 1996 stated:
If the aim is to create optimal incentives to encourage compliance with the regulatory regime, and, through that, the taking of precautions, a civil penalty regime for certain breaches could play a crucial role.
This raises the question of what is meant by terms such as “regulatory compliance”, a “highly regulated environment”, and “regulatory regime”.
4.6The concept of regulation itself is fluid and subject to different interpretations. One definition is “the promulgation of rules by government accompanied by mechanisms for monitoring and enforcement, usually assumed to be performed through a specialist public agency”. This accords with core understandings of regulation as a form of “command and control”: regulation of a specialised field by the State through the use of legal rules backed by sanctions. But a broader analysis of regulation would include within its definition all mechanisms of social control or influences on behaviour. For example, Julia Black defines regulation as any “sustained and focused attempt to alter the behaviour of others according to defined standards or purposes with the intention of producing a broadly identified outcome or outcomes, which may involve mechanisms of standard-setting, information-gathering and behaviour modification”. Under such a broad view of regulation it becomes difficult or impossible to define a fixed, objective category of “regulatory” law. Equally, various answers are possible to the question of why and who we regulate. Early definitions of regulation centred on correcting market failure and controlling the provision of public utilities. Today regulation may also aim to manage and distribute risk; improve access to justice; or improve public participation. For this reason it is difficult to argue there is a category of law that can clearly be set aside as “regulatory”.
4.7As noted, the courts have embarked on this analysis in the course of attempting to identify what criminal offences should be strict liability offences. In undertaking this analysis the Court of Appeal has acknowledged that “public welfare regulatory offence” is a useful characterisation rather than a fixed definition.
4.8The point, then, is that justifying the use of hybrid sanctions such as civil pecuniary penalties by mere use of the term “regulation” is unsatisfactory. There is no settled definition of the term and it could arguably capture any legal rule relating to conduct in any field. The following five sections deal with more specific arguments that are thought relevant to the regulatory field.
4.9In recent years the strategic theory of regulation has been influential in the design of regulatory schemes. “Responsive regulation” is a term coined by Ian Ayres and John Braithwaite and is underpinned by that theory. Responsive regulation holds that regulatory compliance is most likely to be secured where the requirements of a regulatory scheme are backed up by a hierarchy of sanctions. It assumes that those who are regulated are rational actors who will undertake a cost-benefit approach to their decisions about compliance. Ayres and Braithwaite argue that regulators best secure compliance when they can resort to a pyramid of enforcement measures. The base of the pyramid comprises benign actions such as education and negotiation, which are backed up by a range of interventions that increase in gravity, culminating in strong sanctions at the apex of the pyramid. Non-compliance at any level on the pyramid can be tackled by an appropriate intervention or sanction, but the regulator retains the ability to resort to more serious sanctions if required. The person is encouraged to comply because of the threat of greater sanctions. The effect is to encourage early cooperation at the base of the pyramid and, in doing so, to save costs for both the actor and regulator. Strategic regulation theory, then, is appropriate in a resource-limited environment: indeed, a limited resource environment is the starting premise for the theory.
4.10A hierarchy of sanctions is thought to work best where the pyramid has enough tiers to be representative of the cost-benefit trade off and is comprised of a flexible range of sanctions to counteract the range of factors that might motivate someone to fail to comply. This warrants the inclusion of both monetary and non-monetary sanctions and of both civil and criminal enforcement measures.
4.11Responsive regulation has been influential in the introduction of civil pecuniary penalties in New Zealand. A number of our regimes expressly employ a pyramid of enforcement model. The theory also underpinned amendments to the Australian Corporations Act 2001 (Cth) which introduced civil pecuniary penalties for breaches of directors’ duties that involved no “criminality”. It also informed the Australian Law Reform Commission’s review of civil and administrative penalties and the Hampton and Macrory reviews into regulatory justice and enforcement in England.
4.12There has undoubtedly been a change in New Zealand from a distinct command economy to an economy which is more responsive to the domestic and international markets. One consequence has been the need for more flexibility in regulatory supervision, if adopted. In itself this economic factor has been one of the drivers for more responsive regulation.
4.13Criminal penalties by their very nature are long term and static. This is one of the reasons why criminal law policy-makers have emphasised more “fluid” responses to contemporary economic “wrongs”. The flexibility of civil pecuniary penalties is one of their chief attractions. A second is that, in everyday terms, they are more of a carrot than a stick. In economic terms they are more of an incentive, rather than turning on the strict deterrence theory which drives many features of the criminal law.
4.14We agree that the theory of responsive regulation may rightfully dictate our approach to the design of regulatory enforcement regimes in New Zealand. We also agree that monetary penalties may arm regulators with different levers than non-monetary sanctions such as banning orders. And any monetary penalty that can be imposed through a means other than through a standard criminal trial is likely to be attractive because achieving its imposition will be less exacting for the regulator, and because its impact may be felt more immediately. However, we query whether the theory of responsive regulation dictates anything about the format and design of our civil pecuniary penalties.
Civil pecuniary penalties are effective at deterring corporate contraventions
4.15The received wisdom is that regulatory offences are often carried out by corporate actors. The Ministry of Justice draft paper cited the perceived ineffectiveness of the criminal law at controlling corporate offending as being largely responsible for the growth in civil pecuniary penalties. Civil pecuniary penalties are considered to be useful for targeting corporate actors for a number of reasons. First, where the actor is a company rather than an individual, certain features of the criminal law carry less weight. The stigma and practical consequences of a criminal conviction do not attach in the same manner and there is no risk of loss of liberty: a corporation cannot be imprisoned. It follows that the deterrent value of the criminal law may be diminished for corporate actors, especially where it is difficult to sheet criminal responsibility home to the individual directors or employees involved.
4.16Furthermore, the benefit to a body corporate of not complying with a regulatory requirement will normally be a financial one. It follows that the most effective deterrent is likely to be a financial penalty which can be set with a view to eliminating the gain or benefit accrued from non-compliance. This proposition was made in support of a regime of civil pecuniary penalties for breaches of the Unsolicited Electronic Messages Act 2007 and in the Departmental Report on the New Organisms and Other Matters Bill 2003. In the latter report it was said:
… Pecuniary penalties are intended to be an additional mechanism for ensuring compliance with HSNO so that MAF can choose the most effective enforcement method in a particular case. For example, a pecuniary penalty order may be more effective against a body corporate that has made significant commercial gains from breaching HSNO.
4.17Arguably the point is reinforced by media coverage of the civil proceedings commenced against six directors of Hanover Finance Ltd, United Finance Ltd and Hanover Capital Ltd in April 2012. As the National Business Review put it, “the Hanover Six will not end up with criminal convictions if they lose, but they could be hit harder in the pocket”.
4.18The deterrent value of a criminal offence is further diminished where it is perceived that there is a low chance of conviction. It can be difficult to prove corporate offending to the criminal standard, especially where an offence includes elements that relate to the offender’s state of mind. Strict liability offences have been thought effective in this regard as there is no need to prove moral guilt on the part of the offender. This argument has also been used to support the introduction of civil pecuniary penalties for insider trading and market misconduct. The problem is particularly acute in areas where there is no identifiable victim and any harm is so widely dispersed as to be difficult to detect. In those circumstances, the information that can lead to proof that a breach has taken place is often peculiarly in the hands of the alleged offender. Civil pecuniary penalties, it is thought, offer an alternative sanction and an effective deterrent in circumstances where the breach is particularly hard to prove.
4.19It can also be argued that the imbalance between the State and the accused that criminal procedural rules seek to address is not as acute where corporate offending is concerned. Large corporate bodies will have considerable resources at their disposal to assist them in defending proceedings. In those circumstances it might be thought that the full range of protections afforded by the criminal law is less necessary. Instead, in a civil pecuniary penalty regime, allowances may be made for differences in the size of offending companies when it comes to determining the amount of penalty imposed.
4.20However, these arguments are not without their weaknesses. They lose some weight when it is acknowledged that in all cases where civil pecuniary penalties can be imposed on bodies corporate in New Zealand, there is also a civil pecuniary penalty for individuals. The limitations relating to the perceived effectiveness of the criminal law and difficulties of proving state of mind may not apply to natural persons in the same way as they apply to bodies corporate. And, unless the individual has the backing of a large employer, s/he may have no greater access to a well-resourced defence than any alleged criminal. This point applies equally to smaller corporate bodies.
4.21Also, the business community’s unhappy response to the criminalisation of cartel conduct suggests that criminal conviction is considered a more severe penalty in that context. Arguably then, criminal law remains more of a deterrent for the individuals working within corporations.
4.22There is also a flaw in the argument that civil pecuniary penalties are desirable because corporate actors respond well to financial penalties. Financial penalties are also a feature of criminal punishment. In reality, what distinguishes criminal fines and civil pecuniary penalties is that the former are harder to impose and Parliament has, in general, been open to enacting considerably higher maximum civil pecuniary penalties than criminal fines. Moreover, there are concerns about monetary sanctions generally:
- They may give the impression that offences are purchasable commodities or the cost of doing business.
- They may be subject to evasion through the use of incorporated subsidiaries and other avoidance techniques, such as asset stripping.
- Corporations can easily shift the burden of a fine. As a consequence, shareholders, workers and consumers, rather than the responsible officers of an offending corporation, may carry the burden of a large monetary sanction.
- A large monetary penalty may also force a corporation into liquidation. A court may thus be faced with a choice between putting a corporation out of business or imposing a penalty that does not reflect the seriousness of the offence.
- Large penalties may affect innocent corporations associated with the fined corporation, and their shareholders.
4.23Finally there has long been concern about the differential treatment of white collar offenders and more “traditional” criminals. Why is it defensible to criminalise and imprison those who cannot pay substantial financial penalties, but to allow white collar law-breakers to avoid conviction and the risk of incarceration? Arguably the principle should be that the State should treat us as equals in protecting our interest not to be punished.
4.24Some of these concerns can be addressed by returning to the demands of responsive regulation. A regulatory system needs to be tailored in the way that best achieves its desired outcomes. It needs, therefore to be effective in achieving compliance. If there is evidence that corporate actors are likely to respond most effectively to financial penalties which have a high likelihood of imposition then there may be an adequate argument to employ them.
Civil pecuniary penalties can be more appropriate than criminal penalties for some regulatory contraventions
4.25Regulatory regimes frequently set standards or requirements for a wide range of behaviour. Regulatory contraventions can range from a serious, intentional breach of a core rule to the breach of a minor technical requirement where there was no knowledge or intent. Criminal offences are often used for the gravest breaches, but they may be an excessive response to the less serious contraventions under a regulatory scheme. They may be disproportionate both in terms of the impact of the penalty on the offender and the cost to the regulator. Some contraventions, then, while needing some form of sanction to maintain the integrity of the regulatory structure, may not be so serious as to justify criminalisation. In particular, contravening conduct may be considered non-criminal and so apt for enforcement by way of civil pecuniary penalties when it involves no moral culpability. There is a view that civil pecuniary penalties provide a more balanced response to such contraventions. This view appears to be supported by regulators who have previously reported a gap in the range of interventions that they have available to them; and by the regulated community which has voiced little or no concern about the compromise posed by civil pecuniary penalties.
4.26The majority of these breaches are currently enforced by way of strict liability offences. At present, then, criminal conviction arises irrespective of the technical and non-intentional nature of the breach. There may be an argument that civil pecuniary penalties are the lesser evil.
Voluntary participation in a regulated activity
4.27There is an argument that the compromise involved in civil pecuniary penalties is justified where individuals or corporations have willingly entered a closely regulated industry. This is the “licensing” or “consent” theory. It posits that rational actors have exercised free choice to participate (or to continue to participate) in the activity in the knowledge that it is subject to State regulation. The argument continues that:
Those who choose to participate in regulated activities have … placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility … those who engage in regulated activity should … be deemed to have accepted certain terms and conditions applicable to those who act within the regulated sphere.
4.28In the present context, the relevant “term” or “condition” is that breach of the regulatory requirements can lead to the imposition of a substantial financial penalty in civil proceedings, on the civil standard of proof.
4.29There are critics of the licensing theory. For example, Andrew Butler suggests that it is inaccurate to presume that every person participating in an activity has automatically acquiesced to this condition in this manner. He also states that the choice presented is a stark one: participate in the activity under these conditions, or do not participate at all:
The most that can be said of the licensing theory is that when one enters into a regulated activity, one is put on notice that regulation will occur … There is no question of consent, just advance notice. This, though, provides no justification (nor does it provide any clear basis) for distinguishing regulatory offences from true crimes.
4.30In our view, the extent to which the licensing theory carries weight depends on the nature of the activity being regulated and so the scope of the regime at hand. There is a considerable difference between the context of the civil pecuniary penalty regime under the Dairy Industry Restructuring Act 2001 (DIRA) and provisions of the Commerce Act 1986 and the Unsolicited Electronic Messages Act 2007 (UEM Act). The DIRA was designed to enable the restructuring of the dairy industry, and its civil pecuniary penalty regime is designed to assist in ensuring that Fonterra, as the dominant market player, does not abuse its position. In comparison, the Commerce Act and UEM Act regimes have very broad application. Civil pecuniary penalties under those regimes could be imposed on any person undertaking commercial activities in New Zealand. It is difficult to contend that every one of those persons has voluntarily consented to the potential compromise inherent in civil pecuniary penalties.
A proxy for other civil action or cost recovery
4.31Civil pecuniary penalties can fill a gap where the threat of private civil action fails to supply a deterrent. A 2004 Ministry of Economic Development paper which discussed civil remedies noted the difficulties that can be encountered with some private actions:
This approach also addresses other issues with traditional private civil actions, including: identifying the parties that have actually suffered loss as a result of the alleged wrong, particularly where there is a large group of potential plaintiffs (for example in the case of issuers of securities to the public, this could conceivably be the market generally); calculating levels of compensation; and where the harm is slight, justifying the cost of private civil action.
4.32The threat of private civil action is thought to act as a deterrent against intentional or careless conduct that may lead to harm. However, the extent to which it deters depends on the degree of certainty of being sued. The harm that results from some regulatory breaches is widely dispersed, affecting a wide range of persons, yet the harm may be slight on a victim by victim basis. The Hazardous Substances and New Organisms Act 1996, Commerce Act 1986 and securities law regimes are examples that fall into this category. The Ministry of Economic Development has noted that “overseas and New Zealand experience suggests that private enforcement of insider trading prohibitions is not an effective means of deterrence. The effort required in detecting and proving breaches of the prohibitions means that private actions are only likely in very serious cases where public action is not being taken.”
4.33This issue was also addressed in a 1998 Ministry of Commerce discussion document. The Ministry noted that it is highly unlikely that 100 per cent of the victims of price-fixing will pursue legal action. Even if litigation is successfully pursued by a group of people who incurred 40 per cent of the harm, the offender will escape repairing more than half of the harm. Where the gain to the offender is monetary, effective deterrence would require that the offender anticipated that s/he would have to compensate all of the harm, and thus obtain no gain themselves. In these circumstances, statutory provision for civil pecuniary penalties can assist in plugging the gap.
4.34It is important that this argument is not confused, however, with a suggestion that civil pecuniary penalties have a reparative purpose. There is a difference between the aim and outcome of private civil action and civil pecuniary penalties: the former being to secure compensation for harm and the latter to punish. In the vast majority of existing statutes, civil penalties go to the Crown. Civil pecuniary penalties may be reparatory if the penalty can be diverted to those who have suffered harm. However, this is possible under only three civil pecuniary penalty regimes. For example, s 90(1) of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 provides:
On the application of the relevant AML/CFT supervisor, the High Court may order a person to pay a pecuniary penalty to the Crown, or to any other person specified by the court, if the court is satisfied that that person has engaged in conduct that constituted a civil liability act.
4.35Even then, it is not clear that the penalty is to be diverted for compensatory purposes. We do not therefore consider that it is valid to view civil pecuniary penalties as a proxy for compensation. A more appropriate alternative to the reparative function of private civil action is found in the form of statutory compensation orders. Those are provided for in a number of statutes that also provide for civil pecuniary penalties.
4.36Unlike criminal fines, civil pecuniary penalties can assist in cost recovery for agencies enforcing a regulatory regime. For example, s 160(9) of the Biosecurity Act 1993 provides for all or part of the pecuniary penalty to be paid to the departmental bank account of the Ministry if the Court considers that the breach was a material cause of the Ministry having to undertake a response activity. A “response activity” includes minimising the impact or controlling the spread of or eradicating an unwanted organism. The Financial Markets Conduct Bill also provides that in making a pecuniary penalty order the Court must order that the penalty must be applied first to pay the Financial Markets Authority or Commerce Commission’s actual costs in bringing the proceedings. By itself, this is not in our view a valid justification for opting for a civil pecuniary penalty regime rather than criminal offences.