Written warning policy
This policy sets out the Authority’s approach for written warnings.
Purpose
The Water Services Authority–Taumata Arowai (the Authority) monitors and enforces compliance with the Water Services Act 2021 (the Act) and associated secondary legislation. A written warning is one of a range of enforcement tools available to the Authority.
The Authority must ensure that any response to conduct that could be an offence follows due process and is in the public interest. However, the Authority should not overburden the courts with less serious matters that can be effectively resolved through other means. Written warnings are a useful tool for resolving law enforcement concerns outside the court process in appropriate circumstances.
While written warnings are an alternative to prosecution or other enforcement actions, they can still adversely affect the people (natural persons or organisations) to whom they are issued, or who have been affected by the conduct a warning relates to. It is important that the requirements of natural justice and due process are followed when written warnings are issued.
This policy sets out the Authority’s approach for written warnings.
Scope of this policy
A written warning is not defined in the Act or specifically authorised by the Act or other legislation. They are an aspect of the Authority’s inherent enforcement discretion.
This policy applies to written warnings that:
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relate to behaviour that the Authority considers could amount to a criminal offence against the Act or associated secondary legislation (this does not include warnings given as an alternative to issuing an infringement notice or pursuing an infringement offence)
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are communicated in writing to the person (individual or organisation) who has been warned
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are recorded on the Authority’s file for the person who has been warned
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for the period noted in the written warning, are part of the person’s documented compliance history
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may be taken into account when the Authority considers any future enforcement action, and may be shared with other regulatory agencies
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may have ongoing or future disadvantages for the person.
This policy does not apply to other communications that:
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are clearly communicated as informing the recipient that corrective action is required
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are verbal or written communications that are not recorded on the compliance record but may be recorded in notes
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do not have the same potential to have significant or lasting consequences that a written warning does.
Related policies and guidance
All written warning decisions will be made in accordance with relevant policies, and guidelines, including the Solicitor-General’s Guidelines – Warnings (January 2025).
This policy should also be read in conjunction with the Authority’s Prosecution Policy and its Compliance, Monitoring and Enforcement Strategy.
Guiding principles for written warning decisions
Statutory purpose
The Authority is a regulatory agency, with functions that include monitoring and enforcing compliance with relevant drinking water legislation and standards, including the Act. The statutory purposes set out in section 3 of the Act are consequently important for assessing the public interest element of a written warning decision.
The main purpose of the Act is to ensure that drinking water suppliers provide safe drinking water to consumers by:
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providing a regulatory framework consistent with internationally accepted best practice, including duties on drinking water suppliers to have a drinking water safety plan and consistently comply with legislative requirements (such as drinking water standards)
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providing a source water risk management framework that operates together with requirements under the Resource Management Act 1991
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providing mechanisms to enable regulation to be proportionate to the scale, complexity and risk profile of each drinking water supply.
Proportionate
Written warning decisions will be proportionate to the seriousness of the alleged activity, taking account of the availability of other enforcement tools.
An element of considering a proportionate response is to recognise that written warnings may have ongoing or future disadvantages for the person or organisation receiving the warning.
The decision-maker will have regard to the Authority’s Compliance, Monitoring and Enforcement Strategy when making written warning decisions.3 The Authority’s compliance and enforcement approach is to use a mix of proportionate regulatory interventions to:
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promote excellence and good practice in the drinking water sector
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disincentivise behaviours that do not support effective risk management or increase the likelihood of harm to consumers or source water.
Natural justice and due process
Written warnings can adversely affect the people to whom they are issued. While they do not involve the same consequences as a criminal charge or conviction, they also do not typically provide the recipient with the same opportunity to defend themselves that is inherent in the court process. It is important that the requirements of natural justice and due process are followed when written warnings are issued.
A person must have been given the opportunity to comment on the allegations against them before a decision is made to issue a warning. In some circumstances, natural justice may also require a person’s consent to receiving the warning or an admission of the conduct that the warning relates to.
Written warning decisions will be made fairly and consistently. All staff involved in written warnings, or potential written warnings, must act lawfully, fairly and free of any actual, potential or perceived conflict of interest or bias.
Decision to issue a written warning
Purpose of a written warning
The Authority may issue written warnings for a range of different purposes,4 for example, to:
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show that the Authority takes a matter seriously
impress on the person that, in the Authority’s view, the behaviour the person has engaged in amounts to conduct that could otherwise be prosecuted but the Authority has chosen not to prosecute (for instance, on the basis of the ‘public interest’ test that is part of a prosecution decision)
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reduce the risk of the behaviour recurring in the future
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give the person an opportunity to amend or address the behaviour to avoid the risk of prosecution in the future
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send a signal to the person but also to others in similar situations including the public.
we may record mitigating factors in a formal warning letter at our discretion; any such factors would be considered if/when the formal warning was ever relevant to future decisions or processes we administer.
A decision to issue a written warning will, in the context of ensuring that drinking water suppliers provide safe drinking water to consumers, consider:
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the needs and interests of the person who may be warned, including their whānau and community
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the needs and interests of the person or community that was harmed, or was at risk of being harmed
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the wider public interest.
Before issuing a written warning, the decision-maker must consider whether the written warning is likely to achieve its intended purpose.
Appropriate situations for a written warning
A written warning is considered appropriate for incidents where the loss or harm is minor, caused by a genuine mistake, or in circumstances where a prosecution is likely to have a disproportionately detrimental impact.
Other factors include where an incident is unlikely to be repeated in the future, and where the person being warned has taken remedial action.
A written warning is considered inappropriate for serious and/or repeated incidents. A serious incident may involve, for example, significant public health risk or harm to drinking water consumers or significant damage to the environment. A written warning is also generally inappropriate for a major or significant breach of drinking water standards or rules, even if the incident may not have resulted in a significant public health incident.
Decision-making process
Written warning decisions will be made by the Head of Operations.
The recommendation and decision-making process must follow the Written Warning Procedure.
The Authority may only consider issuing a written warning when an investigation has been concluded and the evidential test for a prosecution has been met or when conduct has been admitted to, by the recipient of the warning. If there is insufficient evidence to prosecute, then a written warning cannot be issued.
All recommendations to issue a written warning must be subject to a legal review, which must be conducted by someone independent of the investigation of the relevant incident or situation to which the recommendations relate.
Written warning decisions will not be made unless natural justice requirements have been met, including giving the person opportunity to comment on the allegations against them. The decision-maker must take into account any comments that the person makes in response to any allegations put to them.
The content of each written warning must include the matters identified in the Written Warning Procedure.
Review
Reconsideration of written warnings will only occur in rare circumstances, which may include where:
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a review of the original decision to issue a warning shows that the decision should not be allowed to stand, or
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new evidence means the original decision to issue a warning was not appropriate.
A recipient will be given a reasonable time to request a review of, or to dispute, a written warning after it has been issued. What is a reasonable time needs to be considered in all the circumstances. A starting point is 20 working days.
A person disputing a written warning must provide further information or explanation to be considered.
Any staff involved in a review must be independent of the original decision to issue a written warning and legal advice should be sought as part of the reconsideration process.
A decision on any review will be made by the Chief Executive.
A reconsideration may occur if there is new information, or if it is apparent an error has been made, or there are mitigating circumstances that would render a written warning unjustified.
Rights under the Privacy Act 2020
The Authority’s processes for holding and releasing information associated with a written warning will be consistent with the information privacy principles in the Privacy Act 2020.6 The information principles include (but are not limited to):
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protecting the information against loss and unauthorised access
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providing a person with access to their personal information, along with an opportunity for them to request that it is corrected if they think it is wrong
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ensuring that information is accurate, up to date, complete, relevant and not misleading if released
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not keeping personal information for longer than necessary
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not using personal information that was obtained for one purpose for any other purpose unless authorised
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limits on the disclosure of personal information.
Conflict of interest
Everyone involved in a decision to issue a written warning must be free of any actual, potential or perceived conflict of interest or bias.
All staff with an actual, potential or perceived conflict of interest or bias in relation to a written warning decision must declare this conflict in accordance with the Authority’s Conflicts of Interest Policy and Code of Conduct.
Publishing information about written warnings is valuable for both educating and deterring future non-compliance. The Authority may publicise warnings where it considers it appropriate.