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Offences, penalties and court jurisdictions

Offences and penalties can have potentially significant consequences for individuals, so it is important that proposed sanctions are fair, proportionate and well understood. The development of appropriate offence and penalty provisions is an expert task, which needs to take account of things like:

  • the different roles and expectations of criminal and civil law;
  • the desirability of consistency with existing criminal offences, associated procedural rules and requirements, and New Zealand's international obligations; and
  • the availability of appropriate defences and appeal rights.

The Cabinet Manual requires departments to consult the Ministry of Justice on “all proposals to create new criminal offences and penalties or alter existing ones, to ensure that such provisions are consistent and appropriate”.[21]

The CabGuide further requires the Ministry of Justice to be consulted on policy proposals that “have a direct impact on offending and victimisation” or that “impact on court-based procedures and workloads”[22] to ensure such changes are consistent with the procedural and operational requirements of the court system.

Question 3.4

3.4.  Does this Bill create, amend, or remove:  
(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)? [YES/NO]
(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)? [YES/NO]

What matters are covered by the question?

Disclosure is required whenever a Bill contains any provisions that create, amend or remove offences, penalties, or the jurisdiction of a court or tribunal. Examples would include new offences, increases in existing penalties, the establishment of a new tribunal, or changes to the appeal rights to or from a court.

For the purposes of part (a) of this question:

  • “offences” are conduct for which a fine or a term of imprisonment may be imposed upon conviction; and
  • “penalties” include civil pecuniary penalties, as well as terms of imprisonment, fines, or orders that could be made by a court as a result of an offence.

For the purposes of part (b) of this question, “the jurisdiction of a court or tribunal” includes:

  • the types of matters that may be heard by a court or tribunal;
  • the powers of a court or tribunal;
  • the orders a court or tribunal can make; and
  • appeal rights.

What is the nature of the further information sought?

If the answer is YES to either or both parts of the question, please:

  • identify the relevant provision(s) in the Bill;  and
  • answer the subsidiary question (Question.3.4.1).

Identify the relevant provision by the clause number of the Bill, and include a brief summary of the effect of the proposed change in respect of the offence, penalty or jurisdiction of the court or tribunal.

If the answer is NO to both questions, no further information is required.  You can also delete the subsidiary question (Question 3.4.1) from the disclosure statement.

Further sources:

  • Legislation Advisory Committee, Guidelines on Process and Content of Legislation, Chapter 12 “Criminal Offences”.[23]
  • Guidelines for New Infringement Schemes (approved by Cabinet in March 2008), Ministry of Justice.[24]

Question 3.4.1

3.4.1.  Was the Ministry of Justice consulted about these provisions? [YES/NO]

What matters are covered by the question?

This covers consultation with the Ministry of Justice by agencies other than the Ministry of Justice. If you are the Ministry of Justice, you can answer NO, as appropriate internal consideration and discussion should be assumed to have occurred as a matter of course.

Consultation with the Ministry of Justice could take various forms, including phone discussions, emails, meetings with Ministry of Justice officials, or the receipt of comments from the Ministry of Justice.

Departmental questions about offences and penalties can be sent to:

What is the nature of the further information sought?

If the answer is YES, please :

  • describe the nature and extent of the consultation undertaken; and
  • the nature of any action taken to address issues raised.

The answer to Question 3.4.1 is likely to involve a brief description of:

  • the matters or Bill provisions the Ministry of Justice was consulted about, and the form the consultation took;
  • the issues that were raised in consultation, most likely by the Ministry of Justice but possibly by the agency preparing the Bill; and
  • the actions taken, if any, in relation to those matters or Bill provisions, to address concerns raised by the Ministry of Justice, or otherwise a short explanation of why no action was taken.

If the Bill is large and involves quite a few issues, try to keep the description of the issues as short as possible. The aim is to convey the nature and extent of the issues consulted on. If similar issues arose in respect of a number of clauses try to group the clauses together so an issue only has to be identified once.

If the answer is NO, no further information is required. 

You may, however, choose to take the opportunity to briefly explain why the Ministry of Justice was not consulted.

This might be because you are the Ministry of Justice!

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