Legal Beagle by Graeme Edgeler

I have made a submission on the COVID-19 Public Health Response Amendment Bill (No 2).

In preparing it, I looked at the Hansard for the first reading debate, and got name-dropped as someone likely to make a submission. So, of course I did. I focus on a small bit of the bill, around the change in penalties for breaching COVID orders. In short, the infringement fees are too high, but some of the fines are probably too low.

No need for anyone else to proofread this one, it's already been sent in :-)

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The Health Committee

COVID-19 Public Health Response Amendment Bill (No 2)

Submission of Graeme Edgeler

This submission is made by Graeme Edgeler. I am a Wellington barrister who mostly practices in public and criminal law.

1. I regret that I have not had the opportunity to consider the whole COVID-19 Public Health Response Amendment Bill (No 2) (“the Bill’) given the time made available for submissions, and other commitments, however I am concerned about one aspect of the bill, being the proposed amendments to the infringement fee regime for breaches of COVID orders.
2. Clauses 13 and 14 of the Bill of increase the maximum infringement fee and maximum fine for breaches of COVID orders. I submit that the Committee should reconsider the amounts set.
3. In short, the maximum infringement fee is simply too high, given the purpose of infringement fees. In addition, the new maximum fine able to be imposed on a company will be disproportionately low compared to that applying to individuals.

Criminal Offence or Infringement Offence?

5. Breaching a COVID order is both a criminal offence, punishable by a fine or imprisonment, and an infringement offence, punishable by the imposition of an infringement fee. This dual approach is common with a range of regulatory offences. More serious breaches of COVID orders 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).
6. This bill proposes amending both the maximum fine, and the maximum level of the infringement fee, while also allowing that the Government may, by order-in-council impose different infringement fees for different breaches of COVID orders. I will address the changes to the fine and to the infringement fee separately.

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 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 enforcement agency (whether it’s a local authority, such as for a parking infringement, or police, for something like a speeding infringement, or a COVID 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.

1. 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. But when an enforcement agency 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 (with demerits imposed instead).

The Maximum Fine

11. The Bill would increase the maximum penalty for those convicted of serious breaches of COVID orders from six months imprisonment, or a fine of $4000, to six months imprisonment or a fine of $12,000. For corporations convicted of breaches, the maximum penalty would rise from a fine of $12,000 to $15,000.
12. I do not object to the increase in the maximum fine for this offence for individuals. Judges imposing sentence should have the necessary information available to them at sentencing and can impose a punishment commensurate with the offending. It is easy to imagine a serious offence justifying a fine well above the $4000 maximum currently provided.
13. However, with the new higher fine available for individuals, the proposed increase in the fine for corporations lacks proportionality: simply put, it is now too low. Where a criminal offence provides for maximum penalties of imprisonment for individuals convicted, substantially higher maximum fines are justified for corporations convicted of the same offence to recognise that more serious punishments like prison, home detention, community detention and supervision are unavailable.

1. Providing for a separate fine for corporations that is only 25% higher than the fine that can be imposed on an individual, who can also be imprisoned suggests that either the fine for individuals is too high, or the fine for corporations is too low.
2. Generally, where separate penalties are provided for corporations, a multiplier of at least two, and more commonly, four or even higher would be considered proportionate. In light of the offending covered by this offence, if maximum fines of $12,000 are available for individuals, maximum fines of between $25,000 and $50,000 would be appropriate for corporations. Most offenders will, of course, not receive the maximum, but for the most serious offenders a maximum fine for a corporation of between $25,000 and $50,000 is commensurate when an individual faces a fine of $12,000 (and the possibility of imprisonment).

The Proposed Increases in the Infringement Fee are too Great

16. If the Bill passes in its present form, the infringement fees applying to breaches of COVID orders (which will be imposed for less serious breaches of those rules, as serious breaches should be prosecuted) will be the highest individual infringement fees for any offence in New Zealand, by a substantial margin.
17. While higher infringement fees can be justified for offending committed as part of a profit-making exercise, I do not consider that infringement fees for individuals at the level proposed by the bill can be justified.
18. The Committee may well consider that breaches of COVID orders are more serious than breaches of other laws which provide for infringement fees. I agree entirely. But those serious COVID order breaches should not be subject to infringement fees. They should be subject to prosecution.

1. I can imagine circumstances in which a penalty of $4000 for a breach might be appropriate for an individual, or $12,000 or higher for a corporation, but when a COVID breach is that serious, the penalty should be imposed as a fine, following conviction, not via an infringement fee.
2. Other than three infringement offences in the Immigration (Carriers' Infringement Offences, Fees, and Forms) Regulations 2012, which provide for individual infringement fees of $2500 (all of which relate to profit-generating activity), no infringement fee for an individual in New Zealand exceeds $2000, and even fees that high are relatively rare.
3. In general, I do not consider that infringement fees exceeding $1000 should be imposed on individuals, although I accept that infringement fees of up to $2000 for individuals might be appropriate if limited to individuals whose minor-ish offending is part of a profit-making endeavour (for example, being the person in charge of a business that is breaching a COVID order).
4. The infringement fees that are proposed for corporations are in line with other infringement fees, although are very high in comparison to the maximum fine. Multipliers of five or six are commonly applied to infringement fees that apply to individuals, meaning that infringement fees of up to $12,000 are not necessarily excessive (although care should be taken when setting individual fees). If fines were increased as I have suggested above, then infringement fees of up to $12,000 could not be seriously objected to.

Comparison with Other Infringement Fees

23. It is useful to compare this 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.[1] This fee is set at $630.[2]

1. Drink driving is a criminal offence, but in 2014 Parliament created a new lower drink driving limit which imposes 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.
2. The Building Act creates a number of obligations, including, for example around “dangerous dams” (for example dams as part of irrigation on a farm). When a person fails to comply with a direction from a regional council around repairing a dangerous dam, maximum fines of $300,000 for an individual, and $1,500,000 for a corporation are available. This can also be enforced using an infringement fee. The infringement fee is $2000.
3. 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 arguably similar in seriousness suggests the scale of the proposed increase is unnecessary.[3]

The Committee Should Consider Imposing Restrictions on the Types

27. I anticipate that the Committee may seek input from the Regulations Review Committee about the amendments to regulation-making powers contained in this bill. One matter worth considering if a large increase in the infringement fee is considered is imposing limits on when and how the maximum fee might be appropriate (for example, limiting individual infringement fees at the upper level to individuals involved in profit-making activities).

Conclusion

28. I thank the Committee for the opportunity of making this submission.
29. In short, breaches of COVID orders can be very serious, but serious breaches should be prosecuted, rather than subject to infringement fees.

1. The current $400 infringement fee is not especially low, but allowing the Government to make staggered infringement fees, including some higher than this, is reasonable. However, I am concerned with the particular proposal to allow individual infringement fees of up to $4000. This is much too high, and would be the highest infringement fee in New Zealand, by a substantial margin.
2. I recommend:
   • 1. The maximum infringement fee for an individual should be set at $1000.
   • 2. Any higher infringement fee (up to $2000) that is imposed on an individual should be limited to individuals involved in a profit-making enterprise)
   • 3. The bill’s proposal for a maximum infringement fee for corporations of $12,000 is reasonable.
   • 4. The increase in the maximum fine for individuals to $12000 in reasonable.
   • 5. The maximum fine for corporations is disproportionately low, when compared to (i) the maximum infringement fee for corporations; (ii) the maximum fine available for individuals, and (iii) the fact that individuals face the possibility of imprisonment. A maximum fine of $25,000 or $50,000 could be justified and would be in line with other offences.
3. I look forward to speaking to the Committee if time is available.

Graeme Edgeler

[1]     Speeding at a higher level is effectively always charged as careless, reckless or dangerous driving.

[2]     Land Transport (Offences and Penalties) Regulations 1999, schedule 1B, part 2.

[3]     I encourage the Committee to Consider the Civil Aviation (Offences) Regulations 2006, which has the most comparisons, along with the Building (Infringement Offences, Fees, and Forms) Regulations 2007, and the Land Transport (Offences and Penalties) Regulations 1999 as providing example of infringement fees that may be useful comparisons.