Special Investigation – SIR/41
October 2014

RECOMMENDATIONS

1. Government should establish a publicly-accessible, online database of all penalty determinations under FRPA and WA. Comment – If there are concerns related to the Freedom of Information and Protection of Privacy Act, these could be addressed through a regulation or statute similar to section 6.1 of the Ministry of Environment Act.
2. Government should, by regulation, include the size of the enterprise as a required consideration for decision makers. Comment – This could be done relatively quickly, using the regulation-making authority under section 71(5)(g) of FRPA and section 71 of WA.
3. To promote sound decision-making and consistency, the government should consider reducing the number of delegated decision-makers for penalty determinations so that decision-makers would gain more experience.
4. Decision makers should consider levying larger penalty amounts, particularly where the gravity and magnitude of the contravention is more than minimal, the person has previous similar contraventions or the contravention is deliberate. Comment – This consideration would be in addition to removing any economic benefit.
5. Compliance and enforcement staff should: (a) examine the reasons why so many investigations exceed the policy guidance of one-year maximum and take steps to reduce investigation time; (b) where possible, present evidence to decision makers to enable them to address the issue of economic benefit from contraventions; and (c) consider making more use of agreed statements of facts.
6. Decision makers should complete determinations promptly after the opportunity to be heard, and should include the incident or discovery date in their determinations so that timeliness can be monitored.
7. Decision makers and compliance and enforcement staff should continue the practice of “de-briefing” after a penalty determination has been made, to discuss opportunities for improvement. The Board is not requesting a response to Recommendations 4 to 7, but will continue to monitor these issues.

Response to Recommendations