Most of us understand there are two types of law: criminal law, which involves the state against individuals, and civil law which rules on disputes between individuals or organisations. But there is also a hybrid category - law enforced by the state which carries no criminal penalties - that is become increasingly common, particularly in commercial and environmental law. It raises important questions about fairness that the Law Commission has recently put out for public comment.
The most obvious question is whether any such category ought to exist, since it extends to offences that could be called "white collar crime". It covers offences that can carry financial penalties as high as $1 million for an individual but never imprisonment or the stain of a criminal record.
While that may be a relief to the offender who can find the money, it also means he or she is more easily punished because the offence does not have to be proved to the criminal standard of beyond reasonable doubt. Liability can be established on the civil law standard, the balance of probabilities. Is this fair? Or should the state have to satisfy the criminal standard of proof every time it brings its force to bear on an individual or company?
The commission reports that commercial law enforcers such as the Commerce Commission are increasingly using the non-criminal procedure to deal with offending that involves offences as serious as insider trading, price fixing and even money laundering. Civil pecuniary penalties for these sort of offences first appeared in the Commerce Act 1986 and can now be found in 15 statutes. The Justice Minister has asked the commission to review their benefits, drawbacks and consistency of the penalties and their use.
