What form should our recommendations take?
Guidance for policy makers
8.3A chapter dedicated to civil pecuniary penalties could be added to the LAC Guidelines. The LAC provides advice on the development of legislation. Its overarching purpose is to help improve the quality of law-making. Its Guidelines on Process and Content of Legislation set out central aspects of the process and elements of the content of legislation that should always be addressed when creating legislation. They have been approved by Cabinet, and ministers and officials are required to confirm to the Cabinet Legislation Committee that a draft bill complies with the legal principles and obligations identified in the Guidelines.
8.4A chapter on civil pecuniary penalties could do a number of things. First, it could advise on when civil pecuniary penalties should and should not be introduced into a statutory scheme. This advice could be based on the Commission’s recommendations that arise from responses to the questions in chapter 4 of this Issues Paper. For example, chapter 12 of the LAC Guidelines presently gives such guidance as to when an offence may properly be categorised as a strict liability offence.
8.5Secondly, such a chapter could set out best practice for their design based on our recommendations arising from chapters 6 and 7 of this Issues Paper. Guidance, then, could be given on the approach to:
- The appropriate procedural and evidential rules;
- The standard and burden of proof;
- The operation (if any) of the privilege against self-exposure to a non-criminal penalty;
- Double jeopardy;
- Intention, defences and ancillary liability;
- The imposition of civil pecuniary penalties and provisions enabling settlement;
- The instigation of proceedings;
- Setting maximum penalties in civil pecuniary penalty legislation;
- Guidance as to whether and at what level to impose a penalty;
- Appeals; and
- Limitation periods.
8.6Thirdly, with the assistance of the Parliamentary Counsel Office, the chapter could contain model provisions.
8.7In our view, at the very least the first of these would be worthwhile. As noted in chapter 4, it is our impression that the arguments for civil pecuniary penalties have not always been well articulated. Officials, then, might be assisted by concise guidance on these matters which they can consult when contemplating a new civil pecuniary penalty regime. The LAC Guidelines seem an ideal vehicle for such guidance.