ENFORCEMENT
Which of the range of remedies is to be invoked? Is a criminal sanction needed? Should a specific civil remedy be established? Should new particular remedies or processes be established?
143 The general part of this report touches on this in para 34 above. The method of enforcement may be central to the policy of the legislation - consider for instance labour law and family law. But often those preparing legislation will give much greater attention to the substantive rules and very little to the process for the application and enforcement of the rules. Compliance with the law is not of course simply a matter of formal sanctions and state enforcement. It is much better if it is simply complied with, without any action having to be taken, by public agencies to enforce it. The Report has already stressed that the process of consultation may significantly enhance the acceptability of legislation - and hence compliance with it (eg, paras 3 and 21). Also critical is the sense that the legislation conforms with important, legal principles, is fair, and preserves individual liberty. Technical soundness and accessibility and comprehensibility are essential as well: ignorance of the law may not be a defence but it certainly lessens the prospect of intelligent compliance. Formal enforcement and sanctions must be exceptional means of getting compliance. The following is only a brief note of some of the principal issues.
Which of the range of remedies is to be invoked?
144 Very careful attention should be given to the aptness of the particular remedy to the substantive rules being stated. Aspects of this matter have already been considered in paras 50- 52 and 65-84 above. The statute book presents a great variety of processes and remedies in which the following elements figure:
- The compulsory availability of the process: usually the parties have no choice but to be subject to the process if one of them initiates it; but, sometimes, as for instance with some arbitration, the parties might agree to the process.
- Third party involvement: usually there is third party involvement, but the statute may provide for, or require, negotiation between the parties.
- The independent character of the third party: usually the third party is independent of the parties, but that is not always so, for instance in the usual case of arbitration where the parties chose the tribunal; or in respect of two of the members of certain three-member tribunals where the legislation enables the parties to appoint or nominate those members.
- The binding character of the process: the third party will often have a power of decision, for instance in the usual case of courts, tribunals, and arbitrators, while conciliators, mediators, and the Ombudsmen and in very limited circumstances courts and tribunals may be able only to recommend.
- The procedural character of the process: to be contrasted with the formality and adversary character of, say, a jury trial in a criminal matter is the relative informality of the Family Court and even more the investigatory processes of the Ombudsmen.
- The criteria for decision: they can vary from precise rules of law to very broad standards (such as the public interest or the welfare of the child).
145 Legislation relating to family matters, industrial disputes, the Ombudsmen, discrimination, small claims, the Treaty of Waitangi, arbitration, resource management, fisheries, mining and other enviromnental matters all provide material for consideration.
Is a criminal sanction needed?
146 Not every breach of a statutory duty should be an offence. A basic principle in our criminal law is that criminal offences should be distinctly created by Parliament or other lawmaker. A judgment should be made that remedy instead of, or as well as, other remedies is required. But often a civil or administrative remedy may be more appropriate in attempting to ensure future compliance or penalising or remedying the breach. Or there may be other relevant offences already on the statute book.
147 If an offence is being created, careful attention must be given to the factual and mental elements of the offence; for instance, what standard of care is required or is the offence one of strict or even absolute liability? If the last, what is the possible justification for making reasonable, careful, possibly faultless action criminal? Should reasonable care be a defence to such an offence? If a mental element is to be included how is it to be worded: knowingly, wilfully, recklessly ... ?
148 A related question concerns the burden of proof. The established principle of the presumption of innocence is stated in s 25(c) of the Bill of Rights: a person charged with an offence has the right to be presumed innocent until proved guilty according to law. The burden is sometimes reversed by legislation, but there must be good reason for that. One factor, in the case of regulatory offences, is the relative ease and lack of expense with which the defendant may disprove the matter.
149 The possible penalty on conviction which might be provided for in legislation raises many issues only some of which are noted here. One is whether daily penalties should be imposed for continuing offences, for instance for pollution. Those provisions introduce the possibility of large, indeterminate fines. The more appropriate remedy may be an order for discontinuance or some other coercive relief. A second question concerns the level of the fine and the need to relate it to others in the statute and related areas of the law. A connected matter concerns the possibility of confiscation as part of a penalty (where issues about who should make the confiscation decision and following what procedure also arise). Finally, so far as imprisonment is concerned, the need for an arrest or search warrant power is not by itself sufficient justification. If such powers are justified they can be conferred distinctly for the offence. Imprisonment as a penalty must also be matched to the seriousness of the offence and in particular to its fault element.
150 Generally anyone may lay an information for an offence. But in some cases that is restricted, for instance in respect of offences involving a foreign element or freedom of speech issues. This is obviously a brief note on a very complex problem. The international standards are relevant to some of the matters. And there is of course much contemporary material on penal policy.
Should a specific civil remedy be established?
151 By contrast to the many provisions creating offences for breach of statutory obligations only a very few statutes expressly deal with civil remedies. Some provide that a breach of a duty stated in them gives rise to a damages action in tort. A few also empower officials and persons affected to seek injunctions and other coercive orders to prevent or penalise breach. Some provisions expressly provide that the only remedies available to enforce them are those included in the statute. For the most part though this matter is left to the uncertainty of the general law; cf, paras 34 and 35 above. Consideration should be given to removing that uncertainty by specific provisions. That consideration should be a broad one, looking to the full range of relevant means of getting compliance.
Should new particular remedies or processes be established?
152 Officials may be given powers (sometimes associated with powers of inspection) to attempt to mediate or conciliate a matter or a complaint. As discussed earlier, new jurisdiction might be conferred on an existing tribunal or a new tribunal with powers of decision might be established.