Chapter 4: Infringement fees and fines
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What are infringement offence systems?
Infringement offences are an easy way to encourage people to follow the law. Infringement offences are common to many regulated parts of our lives, such as police giving tickets to people who are caught breaking the speed limit, or fisheries officers giving tickets to people who have taken more fish than legal regulations allow. For freedom camping, infringement offences enable enforcement officers to issue instant fees where there are reasonable grounds to believe that a person freedom camping has committed a relatively low-level breach of freedom camping laws, such as the inappropriate disposal of waste.
A person who commits an infringement offence is liable to receive a penalty, which is often a fee. Infringement fees are a fixed amount a person is immediately liable to pay upon being served an infringement notice. The level of infringement offence fees in other regulatory settings is normally low (i.e., often less than $1,000 but up to $5,000 per infringement). This is because the level of offending involved is low. The intent of these low-level fees is to encourage people to follow simple, specific laws like speed limits and fishery quotas. A person who commits an infringement offence does not receive a criminal conviction.
Infringement offences help to stop the courts from being overburdened with a lot of relatively straightforward and low-level offences. The courts will generally only become involved if an infringement fee is not paid or if the person that received the infringement notice challenges it. If the matter is referred to the courts, the courts may decide a person who has broken the law will be given a fine. The amount of money involved in each fine associated with an infringement offence is determined by the court in accordance with sentencing principles.
Enforcement officers have the discretion to not impose an infringement fee if there are good reasons to do so, for example if educating the person or warning them may be more effective.
The current Freedom Camping Act Infringement system
Currently, section 20(1) of the Freedom Camping Act 2011 sets out several infringement offences. These infringement offences range from freedom camping in a local authority area in breach of a prohibition or restriction made in a council bylaw to inappropriately dumping waste on conservation land. An enforcement officer can currently issue an infringement notice to anyone who commits an infringement offence.
This is how the current infringement system is outlined in the Freedom Camping Act 2011:
- Section 20(1) specifies the offences which are infringement offences.
- All the infringement offences are subject to an infringement fee of $200.
- Section 23(1) provides for regulations to prescribe different infringement fee levels; however, no regulations have yet been made.
- The maximum infringement fee is $1,000.
Both local authorities (councils) and the Department of Conservation can give out infringement fees for freedom camping infringement offences on the land that they manage. Infringement fees issued by local authority enforcement offices are payable to the relevant local authority. Infringement fees issued by the Department of Conservation are payable to the Crown.
Infringements and homelessness under the Freedom Camping Act
People experiencing homelessness often stay in vehicles and tents, and many local authorities report people experiencing homelessness being present at some freedom camping sites and in their districts. The 2018 Severe Housing Deprivation Report shows 2,070 people living in a mobile dwelling and 1,347 living in an improvised dwelling (such as a tent). Additionally, a further 1,521 people were living at a campground[13]
There is no direct reference to homelessness in the Act, but the Act covers the living conditions of those experiencing homelessness. Currently, enforcement authorities use their discretion to avoid issuing infringement notices to people experiencing homelessness who may be in breach of freedom camping bylaws or notices. This is the approach recommended by Local Government New Zealand[14]
The policy intent is to continue to support enforcement authorities in applying their discretion and not to issue infringement notices to people experiencing homelessness.
Footnotes
[13] Dr Kate Amore et al. “Severe housing deprivation in Aotearoa New Zealand, 2018 June 2021 update, (University of Otago, June 2021) at page 32.
[14] Local Government New Zealand, Good practice guide for freedom camping (April 2018) 22-23.Problems with the current infringement system
Currently, a standard infringement fee of $200 is applied to any infringement offence, no matter how severe. This raises questions about proportionality and harm. For example, is it fair that the same penalty applies to a person who freedom camps in a local authority area in breach of a prohibition or restriction and to a person who interferes with or damages an area, its flora or fauna or any structure in the area?
Additionally, local authorities are concerned about the cost of enforcing the current laws. They note that the revenue from current infringement fees is not enough to cover the cost of enforcing the laws. Several territorial authorities have reported relatively low infringement fee collection rates, with most reporting that less than 60 percent (in some cases, around 40 percent) of infringement fees are usually paid.
What the Bill would change
The Self-Contained Motor Vehicles Bill would strengthen the infringement system in a number of ways, including:
- new infringement offences relating to minor non-compliance with self-containment obligations
- giving enforcement authorities the option of issuing infringement notices by email so that they get to the vehicle owner or hirer much more quickly
- prescribing fines associated with an infringement offence at three-times the level of the infringement fee.
Cabinet has supported a move towards a tiered structure for infringement fee levels. We do not think a set fee of $200 is a fair or effective penalty. Tiered penalty levels will increase the deterrence effect.
We are consulting you about options for the tiers for Infringement Fees and fines
In this section of the discussion document, we have listed some options for what the tiers of infringement fees and fines could be. We have included the following options:
- Option 1: a tiered approach to the level of infringement fees at a maximum of $800.
- Option 2: a tiered approach to the level of infringement fees at a maximum of $1,000.
Current law-making practice is for Acts to prescribe a maximum fine associated with an infringement offence[15]. Some Acts enable maximum fines to be prescribed in regulations[16]. However, the Freedom Camping Act 2011 does not currently prescribe any infringement fine, only infringement fees.
Current practice is to set a maximum infringement fine at between two to three times the amount of the infringement fee. Under this option, maximum infringement fines are set significantly higher than infringement fees to dissuade people who are served infringement notices from failing to pay the initial fee or from frivolously challenging the notice in court.
Under either option, regulations would provide a maximum fine that is three times the level of the proposed fee.
Option 1: a tiered approach to the level of infringement fees at a maximum of $800
The current blanket $200 infringement fee does not reflect the fact that some offences are more serious than others. To make enforcement more effective, this option would introduce a tiered system for infringement fees (as currently allowed under Section 23(1) of the Freedom Camping Act 2011) with fee tiers of $200, $400, $600 and $800.
Offences that could result in greater harm would have a significantly higher infringement fee. For example, inappropriate disposal of waste has a higher fee than failing to display a self-containment warrant card, because inappropriate disposal of waste is more damaging than failing to have a warrant card and it is harder to catch someone doing it[17].
Infringement fee levels would be aligned with equivalent conservation-related infringement fee levels, where practical[18]. To ensure this alignment, we sought input from the Department of Conservation when developing our proposed infringement fees.
The new infringement offences in the Bill would be assigned to a fee tier as follows:
- $800 – where actual damage or adverse impacts have occurred, for example where a person freedom camping interferes with or damages an area, its flora or fauna, or any structures in the area.
- $600 – where there is an intent to deceive, for example where a person displays an altered or fraudulent warrant of self-containment, or presents one to an enforcement officer.
- $400 – where there is a breach of national or local restrictions, for example where a person freedom camps in an area in breach of any prohibition or restriction in a bylaw or freedom camping notice issued by the Department of Conservation.
- $200 – administrative breaches. For example, where a person who owns a self-contained vehicle fails to display the self-containment warrant.
Infringement fees would not be set at the $1,000 maximum allowed under the Act[19]. This would encourage compliance, not unduly penalise freedom campers and would align with similar penalties in Conservation legislation.
Option 2: a tiered approach to the level of infringement fees at a maximum of $1,000
Option 2 is similar to Option 1, but with a higher maximum fee of $1,000.
Under Option 2, there would be the following tiers:
- $1,000 – where actual damage or adverse impacts have occurred, for example where a person freedom camping interferes with or damages an area, its flora or fauna, or any structures in the area.
- $600 – where there is an intent to deceive, for example where a person displays an altered or fraudulent warrant of self-containment, or presents one to an enforcement officer.
- $400 – where there is a breach of local or national restrictions, for example where a person freedom camps in an area in breach of any prohibition or restriction in a freedom camping notice issued by the Department of Conservation or in a bylaw made by a local authority.
- $200 – administrative breaches. For example, where a person who owns a self-contained vehicle fails to display the self-containment warrant.
The closest fee and fine comparisons are found conservation legislation
In 2019, a series of conservation portfolio infringement regulations were made by Government. These regulations contain penalties for infringement offences that are comparable to the infringement offences included in the Self-Contained Motor Vehicle Bill. In the table below, we set out the most relevant infringement offences, their penalties, and, were required, how they relate to similar infringement offences included in the Bill.
| Comparative infringement fees in comparative conservation legislation | ||||
|---|---|---|---|---|
| Act | Infringement offence | Infringement fee | Infringement fine | Relation to Self-Contained Motor Vehicle Bill Infringement offences |
| Conservation (Infringement Offences) Regulations 2019 | Damaging, or causing to be damaged, marginal strip, or using marginal strip for purpose contrary to provision or requirement | 800 | 1,600 | Similar to proposed infringement offences relating to damaging an area or flora/fauna |
| Failing to produce permits, etc., on demand | 200 | 400 | Similar to proposed infringement offence failure to display a valid self-containment warrant | |
| Using hazardous substances, etc., to take or destroy fish | 800 | 1,600 | Similar to proposed infringement offence of depositing waste in or on an area (other than into an appropriate waste receptacle) | |
| Reserves (Infringement offences) Regulations 2019 | Littering | 300 | 600 | |
| Anchoring or mooring of boat in breach of notice or permit | 800 | 1,600 | Similar to proposed infringement offence related to freedom camping in an area in breach of a prohibition or restriction (e.g., in council bylaw or Department of Conservation notice) | |
Asssessment of options for the level of infringement fees and fines
We are assessing the options against the status quo, which in this case is a set $200 infringement fee for all infringement offences.
| Option | Costs – the costs on participants in the regulatory system | Practicality - how easy each option is to implement | Effectiveness – the potential to drive freedom camping reform and regulatory outcomes | Overall score |
|---|---|---|---|---|
| Option 1: a tiered approach to the level of infringement fees to a maximum of $800 | Penalties are set proportionate to the nature of offending and align with similar conservation penalties. 2 |
Administratively straightforward to update infringement notices. Enforcement officers would need to be made aware of changes to fee tiers. -1 |
Would enhance public trust and confidence that offensive behaviour is proportionately addressed. 2 |
3 |
| Option 2: a tiered approach to the level of infringement fees at a maximum of $1,000 | Penalties are less proportionate than Option 1 but largely align with similar conservation penalties. 1 |
Administratively straightforward to update infringement notices. Enforcement officers would need to be made aware of changes to fee tiers. -1 |
A maximum $1000 fine may be perceived as unduly harsh, and may not encourage compliance. -1 |
-1 |
Our Preferred option
At this stage, the preferred option is to take the tiered approach to penalty levels set out under Option 1. This option introduces a tiered fee and fine structure that proportionately addresses the harm caused by offensive behaviour. It would ease issues that some councils have faced with cost-recovering their enforcement activities. It also aligns strongly with freedom camping regulatory outcomes. We also think that a maximum fee tier of $1,000 may be perceived as unduly harsh and may discourage compliance with the law. Option 1 also aligns more closely with comparative penalties in Conservation legislation.
Questions
Question 17. To what extent do you agree with Option 1: a tiered approach to the level of infringement fees to a maximum of $800?
Please explain your reasons.
Question 18. To what extent do you agree with Option 2: a tiered approach to the level of infringement fees at a maximum of $1,000?
Please explain your reasons.
Footnotes
[15] This is in line with the Ministry of Justice’s ‘Policy Framework for New Infringement Systems’ and Legislation Design Advisory Committee Guidelines.
[16] For example, section 48C(1)(b) of the Conservation Act 1987.
[17] The approach we used to determine the right tier for each infringement offence has taken into account the Ministry of Justice’s Policy Framework for New Infringement Systems, and Legislation Design Advisory Committee Guidelines.
[18] There are infringement offences (e.g., inappropriate disposal of litter/animal products and undertaking inappropriate activities in restricted or prohibited areas) in the Conservation (Infringement Offences) Regulations 2019 and the Reserves (Infringement Offences) Regulations 2019 that are similar to freedom camping infringement offences.
[19] Section 43(1)(a), Freedom Camping Act 2011.