By Andru Isac 

Those following recent developments involving resource management prosecutions are likely to be aware that late last year an interesting loophole in the Resource Management Act was identified and examined by the Courts.

The problem is this: the Resource Management Act 1991 gives territorial authorities the power to choose between two ways of punishing an offence. The first way is through an "infringement notice" procedure.  An infringement notice procedure is a relatively informal one, and very similar to receiving a parking or speeding ticket.

The second process is more serious;  a criminal charge is filed with the Court and a hearing takes place before a Judge. The problem arose because another act - the Summary Proceedings Act 1957 - provides that where an offence can proceed under an infringement notice procedure:

•1                    The infringement notice procedure must be used, as opposed to the more serious process of laying a charge in the Court, unless "leave" (or permission) from a Judge to use the more serious procedure has first been obtained; and

•2                    No conviction can be entered against a defendant if the offence could have been dealt with under the infringement notice process. In other words, you do not get a criminal record for the offence.

Late last year several defendants raised this issue as a basis on which to appeal their convictions under the Resource Management Act 1991.  They did so because "leave" to commence the prosecution had not been obtained, and even if it had, they said, they should not receive a conviction.

The issue has huge implications.  Since 1991 thousands of people have been prosecuted, convicted and punished under the Resource Management Act and in none of those cases was leave obtained from the Court before proceeding with the more serious criminal charge process.

In December the High Court acknowledged that the Summary Proceedings Act 1957 created something of a gap in terms of the Resource Management Act.  Nevertheless, following long standing principles of statutory interpretation, the High Court took what is known as a purposive approach to fill the gap which Parliament appeared to have left. The Court found that the Resource Management Act created a "special code", and that despite what the Summary Proceedings Act has to say, the prosecutions and subsequent convictions of defendants under the RMA were valid.

It is understood that the decision is under appeal to the Court of Appeal.  Even if the decision of the Court of Appeal is different to that of the High Court, our view is that the problem is so significant that there would be an urgent response by Parliament (in effect validating past convictions and the penalties imposed).  Watch this space.

If you need advice on a resource management matter contact Andru Isac

(06) 351 4707.