Creating infringement offences
This is a single section from Chapter 25. Read the full chapter here.
Is there authority for the infringement regime?
Infringement offences must be in or authorised by an Act.
An infringement offence must either be specified in the Act or be clearly authorised by the Act. Secondary legislation may address some matters, but the Act must contain an appropriate empowering provision (see Chapter 14).
At a minimum, the Act must:
- establish the infringement offence scheme;
- establish the maximum penalty provisions;
- establish who can issue infringement notices; and
- identify the entitlements to revenue that prosecuting agencies receive from infringement fees.
The Act must specify whether the fee will be paid to the enforcement body or to the Crown Bank Account. Generally, infringement fees collected by central government agencies should be paid to the Crown Bank Account, but territorial and local authorities may be entitled to retain all or some of the revenue. If the fee is to be split, that must be provided for in the Act. Treasury advice should be sought on these matters.
It is standard practice for the Act to authorise details of the specific infringement regime to be provided for in secondary legislation, including:
- the specific act or omission constituting an infringement offence;
- the specific penalty levels for each infringement offence; and
- the form of the infringement notice and reminder notice to be issued.
In general, infringement fees should not exceed $1,000, although, in cases with significant financial incentives for non-compliance, a higher fee may be justified to achieve the deterrent effect. If fees are to be set by secondary legislation, the empowering provision should specify the upper limit for the fees. Fees of more than $1,000 should be stated in the Act. In some cases, the Act will need to specify a maximum fine for an infringement offence, as well as an infringement fee. This should be discussed with the Ministry of Justice if infringement offences are proposed.