Design of civil pecuniary penalties – guiding principles
5.36The rule of law demands that those who are governed by the law can reliably be guided by it. That is, they need to be able to find out what the law is and to be sure enough of its meaning to make informed choices about their actions. An aspect of this is the need for certainty in the law: there needs to be “fair warning” about the scope of a person’s potential duties and liabilities. Certainty can also bring with it efficiency, lower costs and confidence for the regulated community. Uncertainty about the procedural protections that accompany civil pecuniary penalties can encourage further litigation as defendants seek to protect or clarify the nature of their rights under civil pecuniary penalty regimes.
5.37Given that civil pecuniary penalties are a comparatively novel, hybrid sanction there is a need for greater consideration and specification about their procedural rules. Furthermore, any lack of certainty in how civil pecuniary penalty proceedings should be pursued is exacerbated where civil pecuniary penalty provisions differ among themselves. In the following chapters we highlight a considerable lack of consistency between our civil pecuniary penalty statutes.
5.38This is not to say that the need for certainty is absolute. There is also an interest in leaving areas of discretion to enforcement bodies and the courts. This way flexibility can be retained, new variations of misconduct can be dealt with and different classes of offender can be catered for. In short, the court’s approach can be tailored to the circumstances of the particular case.
5.39Notwithstanding this, we suggest that the comparative novelty of civil pecuniary penalties and lack of a substantial body of judicial consideration of them in New Zealand heightens the need for certainty. This will be assisted by clarity in their drafting and, where possible, consistency across regimes.