I published my Select Committee submission on the Contempt of Court Bill yesterday. Part of the reason it was both late and short was that I decided that my submission on the Litter (Increased Infringement Fee) Amendment Bill was probably more important, not because the bill is, but because there has to be a reasonable chance that I'm the only person who is going to submit on a bill whose sole purpose is to change a "$400" to a "$1000" in one section of the Litter Act.
It's my first submission to the Environment Committee, so I hope they like it.
The Environment Committee
Litter (Increased Infringement Fee) Amendment Bill
Submission of Graeme Edgeler
1. My name is Graeme Edgeler. I am a Wellington barrister who mostly practices in public and criminal law.
2. I oppose the Litter (Increased Infringement Fee) Amendment Bill and thank the Committee for the opportunity to present a submission on it explaining why.
3. In short, the proposed maximum allowable $1000 infringement fee for littering is out of all proportion with the offence of littering, and out of line with infringement fees for other infringement offences at a similar level. Local Authorities do not need the power to adopt bylaws providing for a $1000 infringement fee for littering. They already have sufficient powers under the current legislation.
Criminal Offence or Infringement Offence?
4. Littering is both a criminal offence, punishable by a fine, and an infringement offence, punishable by the imposition of an infringement fee. This dual approach is relatively common with a range of regulatory offences. More serious breaches of these offences can be prosecuted in the Courts as criminal offences (potentially resulting in a conviction and a criminal record) while less serious breaches can be dealt with using infringement fees (which are like parking tickets, or speeding tickets, and do not result in criminal records).
5. As this bill proposes amending the level of the infringement fee, it should be recognised that it is dealing with low level littering, and not with more serious dumping. More serious littering would be prosecuted rather than dealt with by the infringement notice procedure.
6. If there are concerns with dumping or other serious examples of littering, then amendments to the maximum *fine* for littering (currently $20,000, or $30,000 for dangerous refuse) and not changes to the *infringement fee* would be more appropriate. Of course, particularly serious dumping abuses are likely dealt with under other legislation: either as criminal nuisances under the Crimes Act, or under the Resource Management Act, and not the Litter Act at all. If the Committee has concerns, that may be a better place for it to look.
The Practical Difference Between Fines and Infringement Fees
7. It is important that the Committee appreciates the practical differences between fines and infringement fees.
8. A fine is a sentence that can be imposed by a Court following a prosecution and conviction for a criminal offence. When imposing a punishment, a Judge (or in the case of a fine-only offence like littering, probably a Community Magistrate) is able to look at the particular offence, and the circumstances of the offender, and impose a penalty in line with this.
9. This is not how infringement fees work. Unlike a fine, an infringement fee is imposed as a set amount. If an authority (whether it’s a local authority, such as for a parking infringement, or police, for something like a speeding infringement) issues someone with a ticket for an infringement offence, the infringement fee that comes with it is at a particular level set by the rule that creates the offence.
10. These can sometimes be set to a scale, like the infringement fees for speeding, with different amounts in 5km/h increments, or they can be the same for all instances of a particular infringement offence. When an authority chooses to impose an infringement fee in a particular case, there is no discretion as to the amount. Whatever has been set as the infringement fee is it. Because of this, infringement fees can be inequitable, and recognition of this is part of the reason why speeding fines were lowered some years back.
The Proposed $1000 Infringement Fee for Low-Level Littering is Far Too High
11. As noted above, this bill amends the maximum infringement fee that a council could set for littering.
12.Although littering is bad, a possible $1000 infringement fee is out of all proportion with the offence, particularly when we recall that we are concerned with the type of low-level littering properly subject to infringement fees. It is useful to compare it to other infringement offences: The highest infringement fee that is imposed for speeding is for speeding between 46km/h and 50km/h over the speed limit.  This fee is set at $630.
13. In New Zealand, drink driving is a criminal offence, but in 2014 Parliament created a new lower drink driving limit which imposed an infringement fee rather than criminal penalties for low level drink driving; those over the older higher limit still face conviction and fines in Court, but those who have only breached the new lower limit commit an infringement offence, and face an infringement fee of $200.
14. Although speeding tickets and the infringement offence of low-level drinking driving also come with demerit points, the fact that the level of the infringement fee is substantially lower than for offending that is far more serious than the type of low-level littering appropriately dealt with here suggests the proposed increase is unnecessary.
15. By way of further example, a first-time drink driver actually convicted of the full drink-driving offence (above the higher, long-standing limit), would usually receive a fine of less than $1000.
What Should the Infringement Fee be for Low-Level Littering?
16. People shouldn’t litter, but imposing infringement fees at a level many New Zealander would face great difficulty affording, well in excess of other low-level matters that local councils deal with (like parking infringements, which can by themselves lead to people being unable to pay and having to attend a fines court) is disproportionate.
17. There is, of course, a question of what the infringement fee should be. I am aware that during the first reading debate, a number of MPs discussed whether the maximum infringement fee needed to be brought in line with inflation. The Committee should be aware that it already has been increased well in excess of inflation from its original 1979 levels.
18. When the Litter Act 1979 was introduced, the maximum allowable infringement fee was $20 (~$104.66 in 2018 dollars). In 1990, this was increased to $100 (~$169.54). And in 2006, this was increased to $400 (~$493.33). The suggestion that it would need to be ~$1500 to keep up with inflation is wrong. The fee is already well in excess of the levels it was set at in 1979, and in 1990, and given the low levels of inflation over recent years, it’s still not all that much less in real terms than it was when it was last adjusted in 2006.
19. It may be thought that $400 is low for serious dumping, but of course, serious dumping shouldn’t be subject to the infringement fee process in any event. It should be prosecuted. If there are concerns that commercial-scale unlawful dumping is unable to be prosecuted at appropriate levels under the Litter Act, then the $20,000 maximum fine for criminal dumping under section 15 should be adjusted, not the infringement fee.
20. I oppose the bill, and encourage the Committee to reject it:
20.1. The maximum infringement fee is already in-line with other infringement fees for things like speeding and drink-driving, and substantially higher than those imposed for things like parking infringements.
20.2. An increase in the infringement fee to $1000, would see low-level littering punished with an infringement fee much higher than those imposed for driving 49km/h over the speed limit, or drink-driving in respect of the new lower limit is clearly disproportionate.
20.3. If the Committee is concerned about commercial-scale littering, it should consider amendments to the fine in section 15, or to the Resource Management Act, instead of the infringement fee in section 14, as this bill proposes.
21. I look forward to meeting the Committee in person to address my submission.