This is a single section from Chapter 22. Read the full chapter here.

Is there authority for the infringement regime?

Infringement offences must be authorised by primary legislation.

 

The power to specify an offence as an infringement offence must come from primary legislation. Delegated legislation may address some matters, but primary legislation must contain an appropriate empowering provision (see Chapter 13). To ensure consistency between new infringement regimes, and to ensure those regimes can operate effectively, the matters set out below should be addressed.

 

Authorising and defining the offence—primary legislation

 

  • The prohibited conduct must be precisely defined.
  • Can the prohibited conduct be proceeded against by standard criminal proceedings or not? In those cases where the same conduct may be of such seriousness that it warrants criminal sanctions, primary legislation must specify a separate criminal offence.
  • Who has the authority to issue an infringement notice? Is it the police, inspectors from the Ministry for Primary Industries or other enforcement bodies or officers?
  • In what circumstances may an enforcement officer issue an infringement notice? For example, must the officer observe the prohibited conduct or can they have reasonable cause to believe that the prohibited conduct took place?
  • Will the penalty apply to the Crown?

 

Setting the maximum penalty that may be imposed—primary or delegated legislation

 

  • In general the penalty should not exceed $1,000, although, in cases with significant financial incentives to non-compliance, a higher level of penalty may be justified to achieve the deterrent effect. Penalties of more than $1,000 should be stated in primary legislation. In some cases infringement fees of less than $1,000 may be set by delegated legislation.

 

Operational aspects—primary or delegated legislation

 

  • The precise form of the infringement notice may be specified in delegated legislation, but the basic requirements should be set out in primary legislation. All infringement notices should include a statement that advises the recipient of their right to challenge the infringement notice.
  • To whom will the infringement fee be paid? Legislation must specify whether the fee will be paid to the enforcement body or to the general Crown Bank Account. If the fee is to be split, this must be provided for in the legislation.
  • Special procedures (for example, to allow the deferral of payment, payment by instalments, or cancellation of a notice following remedial action) should be authorised in primary legislation, although delegated legislation may cover the detail.

 

Enforcement and challenges—primary legislation

 

  • Procedures that are available to challenge and enforce an infringement notice should be addressed in primary legislation (see below).

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