Commentary on Sections Part 6 – Civil enforcement, emergency powers and further offences Section 87 – Variable monetary penalties: procedures etc.
This section sets out the process that would have to be followed when a variable monetary penalty was to be imposed and that would have to be provided for in regulations made under section 86. A variable monetary penalty would not be able to be issued if the Department was satisfied that the reservoir manager would have a successful defence and so would not be liable to be convicted of the related offence. As would be the case in relation to fixed monetary penalties, the regulations could include provision as to other circumstances when a variable monetary penalty could not be imposed. A reservoir manager would have to be given a right of appeal to the Water Appeals Commission. The grounds of appeal that would apply are as set out in subsection (7) as well as a power to secure that the Commission may confirm, or quash the decision.
The regulations may enable the Department to accept or reject an enforcement undertaking from a reservoir manager in relation to an offence instead of imposing the variable monetary penalty or while imposing a reduced amount of monetary penalty.
The regulations may also enable the Department to reclaim directly from the reservoir manager the amount of any unpaid variable monetary penalty (subsection (8)).