This is a single section from Chapter 26. Read the full chapter here.
Who should impose pecuniary penalties?
Pecuniary penalties should be imposed by a court.
Generally, decisions about liability for pecuniary penalties and the amount of the penalty should be made by a court, and not the enforcement agency. Judicial imposition of the penalty provides open and transparent consideration of liability and any aggravating or mitigating circumstances, and the avoidance of allegations of a conflict of interest by the enforcement agency (if the enforcement agency is both the complainant and the judge).
In very limited circumstances, penalties could be imposed by an independent non-judicial body. Current examples are the quasi-judicial Rulings Panels established under the Gas Act 1992 and the Electricity Industry Act 2010. This model may be appropriate if specialist knowledge is absolutely essential to the decision on liability and penalty or if there is a particular need for a fast and efficient enforcement system.
Such models should have a process for appeal and review. Consideration should also be given to requiring the chair or other members of the body to have legal expertise.