Plumbers, Gasfitters & Drainlayers Board v Maaka [2015] NZHC 1948 (17 August 2015)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of New Zealand Decisions

BETWEEN	PLUMBERS, GASFITTERS & DRAINLAYERS BOARD Appellant
AND	JESSE MAAKA Respondent

Hearing:	3 August 2015
Counsel:	M J Ferrier for Appellant F Pilditch, counsel assisting the Court
_Judgment:	_{17 August 2015}

This judgment was delivered by me on 17 August 2015 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

PLUMBERS, GASFITTERS & DRAINLAYERS BOARD v JESSE MAAKA [2015] NZHC 1948 [17 August

$200 and fined Mr Horne $300. The Judge did not, however, enter convictions. Counsel for the Board had asked him to, submitting that these were not infringement offences. Judge Hikaka did not address these submissions in his sentencing notes but, by his magisterial silence, must be taken to have rejected them.

[2] The Board sought, and was granted,²leave to appeal the sentences on the ground that the Judge erred in law in failing to enter convictions.

[3] The respondents (unsurprisingly) have taken no steps. Moore J appointed Mr Pilditch as contradictor to assist the Court. I record that the assistance was valuable.

[4] The proposed question of law, and I accept that it does not need to be amended or restated, is:

Was His Honour correct, as a matter of law, to find that an offence against s 123(1)(b) of the Plumbers, Gasfitters and Drainlayers Act 2006 is an infringement offence and, accordingly, that a conviction cannot be entered pursuant to s 375(1)(a) of the Criminal Procedure Act 2011?

[5] Infringement offences attract sanctions such as fines, but do not result in criminal convictions. Having a criminal conviction against one’s name can be a serious matter. Accordingly, the law has developed to allow enforcement action to be taken in defined areas without the result of a criminal conviction. The most

¹_{Contrary to s 123(1)(b) of the Plumbers, Gasfitters and
Drainlayers Act 2006.}

[6] However, it can be surprisingly difficult to work out whether enforcement legislation has created infringement offences, offences for which criminal convictions must be entered, or offences which can fall into either category depending on the procedure used.

[7] The most important (from a precedent point of view) judicial determination of the sorts of issues which can arise is Down v R (on appeal from Wallace Corporation v Waikato Regional Council),³in which the Supreme Court had to decide the validity of convictions for a number of offences against the Resource Management Act 1991. The argument before the Supreme Court was that the offences were infringement offences.

[8] Another example is Builders Corner Ltd v Department of Labour,⁴in which I had to decide whether convictions should have been entered for offences against the Health and Safety Regulations 1995 and the Health and Safety in Employment Act

1992. Again, the ground of appeal was that the offences were infringement offences.

[9] In New Zealand, sanitary plumbing, gasfitting and drainlaying are restricted areas of work. They are regulated by the Plumbers, Gasfitters and Drainlayers Act

2006 (“the PGDA”), which exists to protect public health and safety by ensuring the competency of persons who work in those fields.

[10] Section 10 of the PGDA provides that a person may not lay drains unless the person is authorised to do so. The PGDA provides for the licensing of qualified persons and one of the responsibilities of the Board is to carry out licence enforcement work. That is how the respondents came to be prosecuted. They were found to be doing drainlaying work when they had no licence to do so. They were

³Down v R [2012] NZSC 21, [2012] 2 NZLR 585; Wallace Corporation v Waikato Regional

⁴Builders Corner Ltd v Department of Labour [2011] NZHC 673; (2011) 9 NZELR 57 (HC).

123 Offences to engage in work in breach of sections 8 to 10 and to employ person to do work in breach of those sections

(1) Every person commits an offence and is liable on conviction to a fine not exceeding $10,000 who does, or assists in doing, any—

(2) Every person commits an offence and is liable on conviction to a fine not exceeding $50,000 in the case of an individual, or $250,000 in the case of a body corporate, who does, or assists in doing, any gasfitting in breach of section 9.

(3) Every person who employs any person under a contract of service to do, or assist in doing, any sanitary plumbing or drainlaying in breach of section 8 or 10 commits an offence and is liable on conviction to a fine not exceeding $10,000.

(4) Every person who employs any person under a contract of service to do, or assist in doing, any gasfitting in breach of section 9 commits an offence and is liable on conviction to a fine not exceeding

$10,000 in the case of an individual, or $25,000 in the case of a body corporate.

[11] The Board proceeded against the respondents by filing charging documents in the Court. That is the standard way of commencing a prosecution but it does not mean necessarily that the offence charged is not an infringement offence. It does not mean that a plea of guilty must result in a conviction. That is because of s 375 of the Criminal Procedure Act 2011 (‘the CPA”), which provides:

(1) If a defendant is found guilty of, or pleads guilty to, an infringement offence (whether or not an infringement notice has been issued), the court—

(b) may order the defendant to pay any fine and costs and may make any other order that the court would be authorised to order or make on convicting the defendant of that offence.

(2) Every reference in this or any other Act, or in any regulation or bylaw, to a conviction for an offence is, in relation to an infringement offence, deemed to be a reference to—

(a) an order that the defendant pay a fine and costs under subsection (1)(b); or

(b) a deemed order that the defendant pay a fine and costs under section 21(5) or (5A) of the Summary Proceedings Act

(3) However, sections 229, 244, and 246 do not apply to any deemed order that the defendant pay a fine and costs under section 21(5) or (5A) of the Summary Proceedings Act 1957.

[12] The reason why the Board cares about this issue is that it has the statutory responsibility to prosecute people who breach any Act or Regulation relating to sanitary plumbing, gasfitting or drainlaying.⁵Section 123 is the main offence provision in the PGDA and is said to be the Board’s chief enforcement mechanism. Although not an exciting area of law, the Board’s point is well made that sanitary plumbing, gasfitting or drainlaying work done incompetently can pose very significant risks to public health and safety. It is easy to understand why, for example, s 123(2) of the PGDA specifies a maximum fine of $250,000 for a body

[13] It is the Board’s view that without the ability to convict persons who are charged under s 123, there is insufficient deterrence and sanction to protect the health and safety of the public. There have been inconsistent decisions in the District Court on whether convictions can be entered and the Board wants to clarify the legal position.

[14] The arguments in this case focus on the possible interpretations of the statutes which provide for infringement offences. I start with the Summary Proceedings Act

1957 (“the SPA”). The SPA has been replaced largely by other statutes, including the CPA, but some parts linger in law including some provisions that relate to infringement offences.

Infringement offence means any offence under any Act in respect of which a person may be issued with an infringement notice.

[16] “Infringement notice” is defined also, but by reference to a list of provisions

(a) with the leave of a District Court Judge or a Registrar, by filing a charging document under the Criminal Procedure Act 2011; or

(b) where an infringement notice has been issued in respect of the offence, by providing particulars of a reminder notice in accordance with subsections (4) and (4A), or by filing a notice of hearing in a court, under this section.

(a) an infringement notice has been issued in respect of an infringement offence; and

(b) on the expiration of 28 days from the date of service of the notice, or a copy of the notice,—

(i) the infringement fee for the offence has not been paid to the informant at the address specified in the notice; and

(ii) the informant has not received at that address a notice requesting a hearing in respect of the offence,—

the informant may serve on the person or one of the persons served with the infringement notice, or a copy of the infringement notice, a reminder notice that contains the same or substantially the same particulars as the infringement notice.

[18] The section goes on in detail to set out what may happen if the reminder notice does not provoke payment of the infringement fee.

[19] I come now to the CPA. This deals also with infringement offences. In s 5 it defines “infringement offence” by adopting the SPA meaning. In terms of procedure, the CPA includes “infringement offences” in the definition in s 6 of category 1 offences:

(ii) an offence described in paragraph (b) or (c) of the definition of a category 2 offence; or

		(iii) an offence described in paragraph (b) of the definition of a category 3 offence; or
	(b)	an infringement offence, if proceedings in relation to that offence are commenced by filing a charging document under section 14, not by the issuing of an infringement notice
[20]	The	CPA, therefore, envisages that an infringement offence may	be

prosecuted either through the issuing of an infringement notice (which would require a specified procedure) or as a category 1 offence if the proceedings in relation to that offence have been commenced by filing a charging document. As already noted, s 375 of the CPA prohibits the entering of a conviction for an infringement offence whether or not an infringement notice has been issued.

[21] It is now time to refer to the PGDA. Subpart 2 prescribes offences and how they are to be dealt with. It is clear that it is envisaged that infringement offences may be responded to either by the filing of a charging document (under the CPA) or by the issuing of an infringement notice. Section 128 provides:

(1) If a person is alleged to have committed an infringement offence, that person may either—

(a) be proceeded against by filing a charging document under section 14 of the Criminal Procedure Act 2011; or

(2) Despite section 21 of the Summary Proceedings Act 1957, leave of a District Court Judge or Registrar to file a charging document is not necessary if the Board or the Registrar commences proceedings for an infringement offence by filing a charging document under the Criminal Procedure Act 2011.

[22] As set out above, the SPA defines infringement offence by reference to the ability to issue an infringement notice with respect to the offence. The SPA defines infringement notice by reference to various statutory provisions. One is s 129 of the PGDA. This provides:

(a) the Registrar believes on reasonable grounds that the person is committing, or has committed, an infringement offence; and

(b) the Registrar or another person has not taken enforcement action against the same defendant in respect of the same matter.

(2) The Registrar may revoke an infringement notice before the infringement fee is paid, or before an order for payment of a fine is made or deemed to be made by a court under section 21 of the Summary Proceedings Act 1957.

(3) An infringement notice is revoked by giving written notice to the person to whom it was issued that the notice is revoked.

(ii) the issuing of an infringement notice under this Part; (b) in relation to a person other than the Registrar, the filing of a

[24] Section 130 sets out the procedural requirements for infringement notices, s 131 stipulates that all infringement fees must be paid into a Crown Bank Account, and s 132 provides:

(1) If an infringement notice is issued, a criminal record must not be created in respect of the infringement offence.

(2) Subsection (1) does not prevent a court being told, for the purpose of sentencing a person convicted of an offence under this Part, that the person has paid, or is obliged to pay, an infringement fee for a particular infringement offence.

[25] The Board puts the issue as whether the respondents pleaded guilty to an infringement offence.⁶It submits that the s 4 PGDA definition of infringement offence is qualified by the reference to “this Act” (“In this Act, unless the context otherwise requires, infringement offence means (a) an offence under section 123; (b) an offence prescribed as an infringement offence”.)

[26] Therefore, it is submitted, regard must be had to the s 2 SPA definition of an infringement offence, which refers to “any offence under any Act in respect of which a person may be issued with an infringement notice”. However, the Board submits that this cannot apply to s 123 of the PGDA because there is no legal mechanism for issuing an infringement notice.

[27] The Board points out that it is currently impossible to issue an infringement notice under the PGDA because no regulations (as provided for by s 172 of the

⁶Initially, the Board argued also that s 129(1)(b) of the PGDA precludes the Registrar issuing an infringement notice where enforcement action had already been taken. In this case, the filing of a charging document precluded the issuing of an infringement notice and hence a conviction had to be entered. This argument was, quite properly, withdrawn during the oral hearing. It could not succeed given the reference to s 129 in s 2 of the SPA.

(1) The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:

(h) regulating the procedure of the Board: (i) prescribing infringement offences:

(k) prescribing information to be included in infringement notices and reminder notices:

(l) prescribing transitional or savings provisions relating to the coming into force of this Act:

(m) providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.

24. No such regulations exist. In other words, as a matter of practicality, the machinery for infringement notices to be issued has not been (and may never be) established. Accordingly, both in practical terms and in law, it is not possible for the Board to issue such a notice under s 129 of the PGDA, whether in respect of the offence under s 123 or any other PGDA offence.

25. It follows that the offence in s 123 is not an “infringement offence” for the purpose of the CPA because – for the time being at least and until Parliament (and the Board) take further steps – the Registrar may not issue an infringement notice.

[29] The Board draws also on the use of the words “on conviction” in s 123, the use of the words “convicted of an offence” in s 132(2) and its statutory responsibility to prosecute those who offend against the PGDA.

[30] It is submitted that support by analogy can be drawn from the decision of the Supreme Court in Down v R.⁷The argument is that the statutory provisions in the RMA were similar to those centrally at issue here:

43. The Courts’ emphasis on the legislative purpose of providing authorities with a choice of means to prosecute, as opposed to entirely displacing the use of criminal proceedings, supports the Board’s interpretation on the basis that it best preserves the Board’s choice in s 128 to either adopt the infringement offence regime or proceed with criminal charges. The PGDA is similar to the RMA in providing these alternatives to the Board. The meaningfulness of this choice would be reduced if, whatever process was adopted, no conviction could be imposed; it could be said that the Board would be inadequately equipped to deal with repeat offenders, for example, if there was never the option of conviction.

44. Secondly, in the Supreme Court, Elias CJ and McGrath J considered that part of the design of the SPA provisions was that, by “opting into” the infringement offence regime, defendants could avoid conviction or a criminal record. It was necessary to adopt an interpretation of ss 21A and 78A of the SPA that would reflect this continuing purpose.

45. The Judges’ comments that conviction could be avoided by opting into the infringement offence regime, indicate that the absence of conviction is tied, to some extent, to the actual use of the infringement offence scheme. In the present context, this would suggest that, given there is no machinery in place to issue infringement notices under s 129, the bar on conviction should not apply.

[31] In my view, there is a distinction between the classification of an offence as an infringement offence and the procedure by which it may be prosecuted. If an offence is classified as an infringement offence then no conviction may be entered on it (s 375 CPA). But, infringement offences may be prosecuted either by filing a charging document or through the infringement notice process (s 21 SPA). If the former, then the CPA applies (s 6 CPA). If the latter, then either the s 21 SPA procedure applies or any particular procedure set out in the statute creating the offence or any regulations made thereunder.

[32] So far as s 123 of the PGDA is concerned, I have the clear view that the offences created are infringement offences. Section 4 of the PGDA says so. But that

is not the end of the matter. Because of the words “In this Act” at the beginning of the s 4 definitions, the issue becomes whether the bounds of the PGDA are breached such that s 375 of the CPA applies.

[33] Section 375 of the CPA will apply if the reference to “infringement offence” therein includes an infringement offence as defined in the PGDA. Again, I have the clear view that it does. The s 375 CPA definition comes from the SPA definition. This, as I have noted, goes to whether an offence is one for which a person may be issued with an infringement notice. The SPA defines infringement notice by reference to listed statutory provisions. One is s 129 of the PGDA. That is the section which empowers the issuing of infringement notices under the PGDA. The circle is complete. Section 375 of the CPA applies to infringement offences created by the PGDA, and specifically to s 123 PGDA offences.

[34] I do not accept the Board’s argument that because no mechanism has been created for the issuing of infringement notices under the PGDA, the SPA definition of infringement offence cannot apply. In other words, no-one “may be issued with an infringement notice” under the PGDA.

[35] The flaw in this argument is that the wording of s 2 of the SPA does not relate to mechanism but to the existence of a statutory ability:

Infringement offence means any offence under any Act in respect of which a person may be issued with an infringement notice.

[36] Here, there is the Act, the PGDA, which prescribes that a person may be issued with an infringement notice. The PGDA, through s 172, permits regulations to be made to establish the form of the infringement notices and the amounts of infringement fees. The fact that the Board has not taken steps to have such regulations created cannot alter the effect of the underlying legislation.

[37] Section 375 of the CPA exists to give effect to the policy of Parliament that minor offending which may be dealt with by the infringement procedure will not attract the consequences of a criminal conviction. This policy cannot be subject to the decision of a regulator not to put in place the mechanism which would give effect

^{to its statutory power to prosecute an infringement offence through the
infringement}

[38] In my view, criminal legislation, while it must be construed to give defendants the benefit of ambiguities, must nevertheless be read purposively. I agree, with respect, with Winkelmann J in R v Darwish:⁸

In interpreting provisions of a penal nature I bear in mind s 5(1) of the Interpretation Act 1999 which provides that an enactment must be given meaning from both its text and its purpose. I note that while there appears to be a move away from the strict construction of criminal statutes (R v Karpavicius [2004] 1 NZLR 156 at [15]), toward a more purposive approach, it is nevertheless the case that the accused is still entitled to the benefit of the doubt where there is a genuine uncertainty as to the meaning and purpose of a provision (Laws NZ, Statutes, para 180). In this case there is no such doubt. ...

[39] I echo the last statement: in this case, also, there is no such doubt. It is clear that the PGDA establishes, through s 123 and the related provisions, an enforcement regime whereby the Board may prosecute offending through the charging notice procedure of the CPA or by the infringement notice procedure of the SPA. If it does the former, then defendants will be liable to the penalties set out in s 123 of the PGDA. If the latter, then the defendants will be liable to the far lesser maximum fees as specified in s 172 of the PGDA. Whatever procedure is adopted, no conviction may be entered. That conclusion does not depend on whether the Board decides to utilise the statutory permission or power to issue an infringement notice, by securing the passage of regulations prescribing the forms of infringement notices and reminders, and setting the actual infringement fees for the various infringement offences.

“convicted of an offence” in s 132(2) of the PGDA add anything to this argument. Section 375(2) of the CPA says, specifically:

Every reference in this or any other Act ... to a conviction for an offence is, in relation to an infringement offence, deemed to be a reference to—

(a) an order that the defendant pay a fine and costs under subsection (1)(b); or

(b) a deemed order that the defendant pay a fine and costs under section 21(5) or (5A) of the Summary Proceedings Act 1957.

(b) I do not accept, either, that any support for the Board’s position can be drawn by analogy from the decision of the Supreme Court in Down v R. There are two differences between the infringement notice framework in the RMA, with which Down v R was concerned, and that in the PGDA that limits the usefulness of Down v R. First, as the Court of Appeal in that case held, Parliament deliberately omitted s 343C of the RMA from the s 2(1) SPA definition of infringement

where s 129 of the PGDA is referred to expressly in para (da). Second, penalties for infringement offences under the RMA extend to imprisonment for a term not exceeding two years.¹⁰As the Courts recognised, if the SPA definition applied, it would have the extraordinary result that no conviction could be entered under the predecessor to s 375 of the CPA, but a person could be sent to prison.

This contextual factor is absent from the PGDA. Section 123 applies only to fines.

High Court of New Zealand Decisions

Plumbers, Gasfitters & Drainlayers Board v Maaka [2015] NZHC 1948 (17 August 2015)