Creating infringement offences
This is a single section from Chapter 25. Read the full chapter here.
Is it appropriate to deal with the prohibited conduct as an infringement offence?
Infringement offences should be reserved for the prohibition of conduct that is of concern to the community, but which does not justify the imposition of a criminal conviction, significant fine, or imprisonment.
Infringement penalties may be appropriate if:
- the conduct represents a minor contravention of the law;
- large numbers of strict or absolute liability offences are committed in high volumes on a regular basis;
- the conduct involves straightforward issues of fact that can be easily identified by an enforcement officer;
- a fixed penalty can achieve a proportionate deterrent effect because contraventions of the particular prohibition are reasonably uniform in nature (if individual culpability can vary widely, the conduct is unlikely to be suitable to be dealt with by infringement offence); or
- identifying actual offenders is not practicable (for instance, in relation to parking, speed cameras, or toll road offences), but liability may be attributed to the person who has prima facie responsibility for the item used in the offending (such as the owner of the vehicle that is found speeding or illegally parked).
Infringement penalties are generally not appropriate for mens rea offences, cases that involve complex factual situations, or conduct that may warrant more serious consequences (for example, more than a $1,000 fee or a non-monetary penalty).
Any aspect of an offence that provides an incentive to a person issued with an infringement notice to challenge the matter in court (for example, a high fee or the potential to prove some matter to escape liability) defeats the purpose of the infringement regime to keep minor infringements of the criminal law out of court and therefore should be avoided.
It is generally undesirable to have identical conduct specified to be both an infringement offence and a separate criminal offence. Wherever possible, some differentiation as to mens rea or the specific type of conduct should exist between infringement offences and other offences in the same legislation. If a low-level fixed fee is considered insufficient to punish or deter the prohibited conduct, the conduct is likely to be too serious to be dealt with as an infringement offence.
 Ministry of Justice Policy framework for new infringement schemes.
 This is subject to the person issued with the infringement notice being able to raise his or her lack of involvement in the offending with the issuer and to challenge it in court.