Prosecution policy
This policy sets out how the Authority will use and manage prosecutions.
Purpose
The Water Services Authority–Taumata Arowai (the Authority) is responsible for monitoring and enforcing compliance with the Water Services Act 2021 (the Act) and associated secondary legislation.
Prosecution is one of a range of compliance and enforcement interventions available to the Authority and sits at the serious end of interventions. Due to the potential for serious consequences for both persons charged with offences and the Authority, it is important that the Authority uses prosecutions lawfully and appropriately.
This policy sets out how the Authority will use and manage prosecutions.
Scope of this policy
This policy provides guidance to be followed by the Chief Executive and other contributing Authority staff in deciding whether to initiate a prosecution following an investigation. The policy also provides guidance about the ongoing conduct of, and decisions made during, the prosecution process.
This policy does not apply to written warnings, infringement notices, injunctions, directions, compliance orders, enforceable undertakings or other interventions under the Act. Alternatives to prosecution should, however, be considered as part of the prosecution decision-making process where appropriate.
This policy does not cover private prosecutions or orders for costs in prosecution proceedings.
Related legislation, policies and guidance
All prosecutions will be conducted in accordance with relevant legislative requirements, policies and guidelines including the Solicitor-General’s Prosecution Guidelines.
This policy should be read in conjunction with the:
The Authority operates in a regulatory context and the statutory purposes set out in the Act guide the Authority’s decision-making processes. This is particularly relevant for assessing the public interest elements of a prosecution decision.
The main purpose of the Act is to ensure that drinking water suppliers provide safe drinking water to consumers. To achieve this, the Act provides for:
- a regulatory framework consistent with international best practice, including duties to have a drinking water safety plan and comply with legislative requirements (such as drinking water standards)
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a source water risk management framework, which operates in conjunction with the Resource Management Act 1991 and secondary legislation made under it, and
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mechanisms to enable regulation to be proportionate to the scale, complexity and risk profile of drinking water supplies.
There are no offence provisions related to the Act’s additional purposes,2 which include providing transparency about the performance of drinking water, wastewater and stormwater networks, building capability across the water services sector, and establishing a framework for the continuous and progressive improvement of the quality of water services.
Guiding principles for prosecution decisions
The Authority’s decisions to prosecute will be:
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proportionate
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independent
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fair and objective, and
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aligned with the Authority’s enforcement objectives.
Proportionate
Prosecution is one of the mechanisms in the Act that enables regulation to be proportionate to scale, complexity and risk profile.
Prosecution decisions are guided by the Authority’s Compliance, Monitoring and Enforcement Strategy 3 which sets out the Authority’s regulatory approach. The Authority adjusts how it works with suppliers according to a range of factors, including:
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the size and complexity of a supply
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the level of risk to the people using water from a supply
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a supplier’s history of performance and compliance, and
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a supplier’s willingness to engage with us and make improvements.
Independent
Prosecution is part of the Chief Executive’s statutorily independent function to monitor and enforce compliance with the Act.
Anyone involved in the prosecution process must act independently.
Anyone with an actual, potential or perceived conflict of interest must not be involved in a prosecution decision.
Fair and objective
Prosecution decisions will be made fairly and objectively to ensure equitable outcomes and that any person charged with an offence can receive a fair trial.
Everyone involved in prosecutions or potential prosecutions must uphold the rule of law, and conduct themselves free of the influence of any personal biases, sympathies or prejudice.
Alignment with enforcement objectives
The Authority’s enforcement objectives are described in the Compliance, Monitoring and Enforcement Strategy.
They also include:
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the need for general and specific deterrence in appropriate circumstances
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respect for the rule of law, and
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the need to ensure the integrity and credibility of the drinking water regulatory system.
Decision to prosecute
Decision-making process
All prosecutions will be preceded by an investigation and legal review of the resulting investigation report. Any recommendation to take a prosecution must be made in accordance with this policy and the Solicitor-General’s Prosecution Guidelines.
The decision to commence a prosecution will be made by the Chief Executive. In reaching the decision, the Chief Executive will:
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consider all the information in the investigation report
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consider any relevant internal and/or external advice
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consider any relevant considerations arising under the Treaty of Waitangi (Te Tiriti o Waitangi) and its principles, including Treaty settlement obligations
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have regard to the Compliance, Monitoring and Enforcement Strategy
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consider available alternatives to prosecution where appropriate
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consider the estimated cost and resource impacts of a prosecution
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consider whether or how a prosecution aligns with the Authority’s enforcement objectives
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consider any of the Authority’s statutory operating principles that are relevant.
The test for prosecution
The Chief Executive must be satisfied that the ‘test for prosecution’ in the Solicitor–General’s Prosecution Guidelines is met. This test has two stages:
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Is there enough evidence to prove the proposed charge beyond reasonable doubt? (the evidential test)
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Does the public interest require a prosecution to be brought? (the public interest test).
The evidential test
The evidential test is satisfied if there is enough available, admissible, credible, and reliable evidence to put before a court to lead to a reasonable prospect of conviction by a judge or jury.
An assessment of the evidential test will include whether any evidence indicates a defence is likely to be successful.
The evidential test will usually be considered first. However, when a prosecution is clearly not in the public interest a full evaluation of the evidence is not necessary.
The public interest test
A prosecution must not be brought unless the public interest requires it.
Not all provable offences must be prosecuted. Even if the evidence is overwhelming, there must be an assessment of whether a prosecution is required in the public interest before a decision is made.
The Authority will consider whether an alternative to prosecution is an appropriate response to the offending and whether the offence is at a level of seriousness that requires prosecution.
In addition to the public interest factors in the Solicitor-General’s Prosecution Guidelines, the statutory objectives, operating principles and enforcement priorities of the Authority will be considered. Particular statutory objectives include protecting and promoting drinking water safety and related public health outcomes.
The Authority will consider any harm that occurred or risk of harm to consumers of drinking water when determining the seriousness of an offence. The sentencing criteria in section 194 of the Actoutbound will be considered in this assessment.
Alternatives to prosecution
The Authority has a range of statutory and non-statutory compliance and enforcement tools available, including:
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directions
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compliance orders
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infringement notices
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enforceable undertakings
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written warnings, and
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educative approaches.
The decision-making process should consider prosecution as part of a range of available tools, and involve an assessment of how each tool may:
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address the offending conduct
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restore the position of those affected
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hold the person accountable, and
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meet the Authority’s enforcement objectives.
The Authority’s Compliance, Monitoring and Enforcement Strategy guides this assessment.
Further enforcement action may also be taken to hold an offender accountable when a compliance tool such as a direction or compliance order has been used to address or remedy an immediate risk.
For offending that is at least of moderate seriousness, it may be appropriate not to assess alternatives.
Limitation period and extension of time
With some exceptions, a prosecution brought by the Chief Executive must be initiated within 12 months after the date on which the matters on which the offence is based first became known, or ought reasonably to have become known, to the Chief Executive.
The Chief Executive may apply to the District Court to extend the time to start a prosecution for up to 12 months.6 The Chief Executive will consider whether the court can be satisfied that the investigation is complex or time consuming, it is in the public interest that a charging document be filed after expiry, and that the defendant will not be unfairly prejudiced by the delay.
Other agencies
The Authority will co-ordinate enforcement action with any other regulatory or enforcement agencies that are responding to the same situation. When deciding whether to prosecute, the Authority will consider any existing or likely prosecution or enforcement action by another agency.
Where it is decided that another agency is to be the lead prosecuting agency, the Authority will provide any appropriate assistance.