General Comments and Summary…

General Comments and Summary of Main Points
(Please see attached Consolidated Feedback Report for further details)

We would appreciate the opportunity to further discuss this feedback in more detail as you proceed with the consultation process.

(1) We recognize that penalties are a requirement to ensure that both the terms and the ‘spirit’ of the RRCEA are adhered to.

• Penalties should be appropriate to the risk associated with a contravention

• Penalties should be appropriate to the impact of the contravention

(2) The concept of “Risk-Based Compliance” underpins the administration of the RRCEA and the associated regulations by the RPRA.

• The Administrative Penalties Regulation should make clear reference to the “Risk-Based Compliance Framework” that has been developed to manage and structure compliance with the RRCEA and the associated regulations.

• The Framework provides clear direction and appropriate escalation to structure how and when an administrative penalty should be ordered.

• The Registrar or a Deputy Registrar is incentivized to issue administrative penalties and embedding the Risk-Based Compliance Framework into the Regulation will help provide an ‘administrative structural control’ and ensure a fair approach to achieving compliance across all entities/persons.

(3) Several elements are unclear and/or not referenced in this regulation, which has a significant impact on how the penalties will be determined, served to appropriate persons, and ultimately whether the penalties are fair.

• There appear to be considerable areas whereby it could be the Producer who will be ordered to pay a penalty, but it was the PRO who was ‘operationally responsible’ for the alleged contravention (and vice-versa)

• by not clarifying who/where the communication and/or compliance order would be issued, it will create unneeded confusion and administrative issues to ‘sort things out’ all the while possibly creating a situation where continued unintended contraventions could occur.

• RPRA has taken a position that ‘it is the Producer that is responsible under the RRCEA, so [RPRA] will deal with the Producer’, however, in practice, this does not seem to be a consistent approach (ie. the PRO is often ‘brought in’ to deal with issue(s) rather than to go through a Producer.

(4) Overall, the penalties seem excessive.

• A clearer understanding and/or insight into the penalty setting criteria is needed (ie. how were the daily maximums determined? How will actual penalties be assessed?)

• Without an understanding of the methodology that the Registrar or a Deputy Registrar will follow to determine the amount of penalty, the penalties could be unfairly distributed across the parties (ie. different penalties for different people for the same contravention)