Chapter 7
Other elements of legislative design

Terminology and classification

7.1In chapter 2 we note that there is a wide range of civil and criminal monetary and non-monetary penalties and remedies on the statute book. At present a range of terms is employed for these and their use is not always consistent. Terminology is not, therefore, a good indicator of the nature of a given penalty. Clarity of the law would be assisted by the adoption of consistent drafting practice in relation to the various penalties and remedies on the statute book. We suggest that any penalty:

should be referred to as a "civil pecuniary penalty".

Q26 Do you agree that any penalty:
  • that involves substantial maximum financial penalties;
  • that is imposed by the High Court after a civil trial, according to the rules of civil procedure and evidence;
  • where liability is established on the civil standard of proof;
  • where payment of the penalty is enforced in the civil courts, as a debt due to the Crown; and
  • where neither imprisonment nor criminal conviction can result;

​should be referred to in legislation as a "civil pecuniary penalty"?