Are the RMA’s Offences Being Used Appropriately?

Abstract

This chapter addresses the second criterion against which the offences in the Resource Management Act 1991 are assessed, namely whether they are being used, from a criminal law perspective, appropriately. It begins by labelling the approach that local authorities take to the offences, as discussed in Chapter 5, the “compensatory gloss”. It then considers the implications of the compensatory gloss approach in relation to three prosecution decisions that a local authority must make—what types of cases to pursue, how to resolve cases “in court” and how to resolve cases “out of court”. It is argued that the compensatory gloss approach leads local authorities to act in ways that are inappropriate, in that they treat regulatees unequally, they act unfairly and in an unprincipled manner, and they enter into some arrangements that are, at best, unsuitable given the seriousness of the offending and, at worst, unlawful. It is also argued that this has been allowed to happen due to a lack of oversight or accountability. The conclusion reached is that not only is the approach taken by councils to prosecutions distinctly “non-criminal”, as found in Chapter 5, but it is more like one would find with civil proceedings.