New Guidance for Administrative Penalties in Australia and New Zealand
By Matthew Baird, MEIANZ, Barrister, Sydney, Australia and Member CEL of IUCN and the Working Group on Compliance and Enforcement

A publication focusing on the use of administrative remedies for breaches of environmental and planning laws is now available from The Environmental Law Roundtable of Australia and New Zealand (ELRANZ), a joint initiative of the National Environmental Law Association of Australia (NELA) and the Resource Management Law Association of New Zealand (RMLANZ).

The publication has been years in the making, stemming from a discussion paper issued by ELRANZ in August 2006 following consultation with a number of stakeholders and a Seminar held at the Sydney offices of law firm Clayton Utz on 21 November 2005.

The purpose of the ELRANZ is to promote discussion on specific issues that may lead to the development of a uniform approach to the issuing of Penalty Infringement Notices (PINs) or penalty notices and to a better approach to environmental compliances issues generally. PINs, a tool for promoting environmental enforcement and compliance, are examined by ELRANZ in its current publication. The individual issued the PIN has the option of either paying the penalty set out in the notice to expiate the offence or electing to have the matter dealt with by a court. The notice also specifies the time and method for payment and the consequences if the person to whom the notice is issued fails to respond to the notice either by making payment or electing to contest the alleged offence.

The ELANZ publication considers previous work done by the Australian Law Reform Commission and the Law Commission of New Zealand. The Australian Law Reform Commission in 2002 produced Report no 95 entitled Principled Regulation: Civil and Administrative Penalties in Australian Federal Regulation, which considered the use and application of PINs across the various states, territories and at the Federal level in Australia.

Additionally, the Law Commission of New Zealand in its discussion paper The Infringement System A Framework for Reform, in August 2005 (NZLC SP16), proposed a novel solution to the issue of penalties in suggesting a two tier system for infringement notices. There would be a higher maximum penalty set at a percentage of the court imposed fine but that offences at the lower range could be challenged in the Courts but only as to the quantum of the fine, which could be maintained or reduced without exposing the applicant to the possibility of a higher fine. The first tier infringement notices could also be challenged but then the Court would have the discretion to impose a more significant fine.

A significant matter to be addressed in any scheme for infringement notices is the question of the appropriateness of monetary penalties for environmental offences. In a number of jurisdictions there is a move towards creative and restorative sentencing for environmental offences. In circumstances where an infringement notice is issued there may be no relationship between the penalty and any environmental harm occasioned by the breach. Again for an effective infringement notice system dealing with environmental offence it would seem appropriate for there to be some opportunity to impose a punishment that will remedy the environmental harm.

One of the significant philosophical issues in the use of penalty notices is that the use of administrative mechanisms to enforce public policy removes the offence from the public arena. Community attitudes support increasing penalties for environmental offences. This has manifested itself in a greater increase in penalties as well as discussion about restorative justice for environmental offences. As the use of infringement notices increases it will be necessary for adequate reporting to be adopted to ensure that the community realises that the use of infringement schemes do not equate to a relaxation of environmental standards or regulation. Rather the use of PINs are seen as one of the many options available to regulators and that the choice of option is set out in publicly accessible guidelines. These guidelines should, wherever possible, be applicable across all jurisdictions.

The Final Recommendations of the ELRANZ Report into Penalty Infringement Notices ("PINs) are included in a modified version of the Report that was presented at the LAWASIA 20th Biennial Conference in Hong Kong, SAR, Peoples' Republic of China in June 2007. A copy of the presentation is available from

More information on the ELRANZ publication can be found at this address.