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This book is only available in PDF format

Author: Tim Conder
Published: 17 March 2025
Pages: 36

Introduction

Even among experts in criminal law, the topic of regulatory offences is usually regarded as an afterthought. Leading texts such as Adams on Criminal Law – Offences and Defences and the leading student texts such as Simister and Brookbanks focus exclusively on what may be thought of as the traditional offences – violence, property offending, sexual offending and drugs. Even references to driving offences or to the Summary Offences Act 1981 (which between them probably account for the majority of convictions entered in New Zealand courts) are rare. It is easy to assume that for the average New Zealander, the concept of crimes that fall outside of the Crimes Act’s calendar of offences barely register as criminal offending.

While these perceptions remain widespread, this is not through a lack of intention from Parliament to change them. As early as 2001, with the Health and Safety in Employment Amendment Bill, the Government emphasised the seriousness with which it regarded such offending, and the importance of underpinning those principles.

Efforts to this end have been varied. They can be observed in the gradual ratcheting up of fines under key legislation like the Health and Safety at Work Act 2015 (HSWA) and the Resource Management Act 1991 (RMA). They can also be seen in the gradual erosion of fines insurance both by Parliament and the courts.

The first step in this direction was contained in the Health and Safety in Employment Amendment Act 2002 – which prohibited insurance for fines in the health and safety context. That provision has been carried over into the HSWA, and is now a point of discussion in the reforms of the RMA that are currently in train. Even where fines insurance is permitted, the courts have begun to raise questions about whether this is appropriate and whether it should impact on the level of fine imposed. The occasional imposition of non-fine sentences, including imprisonment, for regulatory offending reinforces this trend.

It appears likely that fine insurance, even where it is presently permitted, will be abolished within a few years. Steps are already being taken to make this change for RMA charges. This, combined with the increasing level of fines being imposed will inevitably, as the submitters on the 2001 amendment bill observed, lead to more insureds expecting insurers to meet the costs of actually advancing a defence to a charge. After all, many will argue, what is the value of insurance for “defence costs” unless I can choose to defend myself?

The effect of this for lawyers in the regulatory space will be a decreased emphasis on resolution, and an increase in the number of matters either progressing towards or actually reaching a trial. The purpose of this paper is to address the issues that counsel will need to consider in representing regulatory defendants in this context – and particularly to introduce lawyers whose practice has primarily been focused on civil proceedings to the full range of options available in the criminal jurisdiction. (continued...)
 

Content outline

  • Questions of strategy
  • Pre-charge decisions
  • After charges are laid
  • Case management - resolution and rationalisation
  • Evidence applications
  • Trial issues
  • Post-trial issues
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CONDER Tim    
Tim Conder
Holland Beckett Law
Tauranga		    

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