Item 8.4
- Attachment 1 |
The
draft Restricted Premises Enforcement Policy |
6th April to 4th May 2011
Table
of Contents
1.0 Introduction
1.1 Background
1.2 Purpose
1.3 Objectives
1.4. Parramatta City Council Guiding
Principles
2.0 CRITERIA FOR RESPONSE
2.1 Principles for Response
2.2 Factors for Response
3.0 REQUIREMENTS
3.1 Enforcement Activities
3.2 Hierarchy for Response
4.0 MANAGING COMPLAINTS
4.1 Access to Information
4.2 Customer Request Management System
(CRMS)
4.3 Staff Conducting Inspections
4.4 Matters for Consideration
4.5 Inspection Records
4.6 Reporting
4.7 Authorisations
4.8 Fees
5.0 LEGAL PROCESS
5.1 Civil Proceedings
5.2 Prosecution Procedures
5.3 Penalty Infringement Notices
5.4 Grievances
5.5 Privacy
5.6 Audit and Probity
6.0 OTHER MATTERS
6.1 Review Period
This Policy applies to Brothels
and Related sex use premises and should be read in conjunction with the Parramatta
City Council’s Enforcement Policy.
This Policy has been
prepared to facilitate an effective and consistent approach to enforcement of controls on Brothels and
Related sex use premises under the laws relating to operation of those premsies.
This Policy will help align
enforcement actions across all arms of Council, namely the Regulatory Services Unit
and the Development Services Unit, as they monitor and regulate business
activities and premises within the Parramatta local government area.
This Policy applies to all
Council’s activities relating to Brothels and Related sex use premises and it sets
out the process on how incidents will be escalated between the enforcement arms
of Council.
1.2 Definitions
In this Policy:
Brothel means premises:
(a) habitually used for the purposes of
prostitution, or
(b) that have been used for the purposes of
prostitution and are likely to be used again for that purpose, or
(c) that have been expressly or implicitly:
(i) advertised (whether by advertisements in
or on the premises, newspapers, directories or the internet or by other means),
or
(ii) represented,
as being used for the
purposes of prostitution, and that are likely to be used for the purposes of
prostitution (and premises may constitute a Brothel even though used by only
one prostitute for the purposes of prostitution).
Enforcement
Fee means the fee charged by Council in connection
with the inspections of premises that are undertaken for the purposes of taking
enforcement action as a result of any non compliance with development consent
or offence under any laws relating to the use and occupation of the premises or
both..
Monitoring
Fee means the fee charged by Council in connection
with the inspections of premises that are undertaken for the purposes of
assessing compliance with development consent or any laws relating to the use
and occupation of the premises or both.
High
Risk Premises means any premises that Council staff
consider have a high risk of non compliance with development consent or any
laws relating to the use and occupation of the premises or both and such
premises may include (without limitation):
(a) Brothels; or
(b) premises that conduct massage parlour
operations in relation to which:
(i) there are genuine
concerns of unauthorised sex related activities occurring on the site; or
(ii) there exists evidence
of a pattern of unauthorised sex related activities; or
(iii) complaints have been
received from the public alleging unauthorised sex related activities; or
(c) premises that are
identified as potentially having occupational health and safety risks.
Low
Risk Premises means all premises that are not considered
High Risk Premises.
Related
sex use means the following:
(a) the use of premises for the provision of
sexual acts or sexual services in exchange for payment;
(b) the use of premises for the provision of
massage services (other than genuine remedial or therapeutic massage services)
in exchange for payment;
(c) the use of premises for the provision of
adult entertainment involving nudity, indecent acts or sexual activity if the
entertainment is provided in exchange for payment or if the entertainment is
ancillary to the provision of other goods or services.
To prepare and implement a policy that guides
regulatory enforcement activity in relation to Brothels and Related sex use premises
in the
· Confirm that Council has a minimal tolerance
approach to unlawful activity and non compliance with development consents.
· Implement Council’s resolution of 26 May 2008 which
states that
Council move to 6 monthly sex service premises inspections (ie brothels, sex on
premises facilities, therapeutic massage facilities, massage parlours).
· Provide consistency in enforcement matters of environmental
breaches, development non-compliance, and to ensure transparency, procedural
fairness and natural justice.
· Acknowledge an obligation under relevant sections
of legislation to ensure that the exercise of its regulatory power is carried
out consistently and without bias.
· To set
the criteria for the regulation of the types of premises covered by this Policy
The objectives of this Policy are:
§ to inform the public of the principles and measures
that Council staff will apply in its compliance and enforcement activities
relating to Brothels and Related sex use premises;
§ to provide guidance to Council staff in pursuing
enforcement options;
§ to implement a fair and equitable enforcement
system consistently across the Parramatta local government area and
§ to provide a mechanism to enable Council to recover
the costs of regulating and monitoring Brothels and Related sSex use premises
1.4.
Council’s guiding principles
will apply to all actions taken under this Policy.
Council’s guiding principles
are:
· Cooperative teamwork
· Customer service
· Sustainability and Community focus
· Leadership
· Accountability
· Integrity
· Communication
· Excellence
· Innovation
· Respect
These
guiding principles align with the values and principles of Council together
with the requirements of any relevant legislation
Council staff will:
§ act in the
public interest;
§ act consistently, impartially and fairly according
to law;
§ promote consistency through effective liaison with
field staff and the adherence to policies and procedures;
§ not discriminate on the basis of race, religion,
sex, national origin or political association;
§ ensure that enforcement action is taken against the
right person for the right offence;
§ ensure that all relevant evidence is placed before Courts
or appeal tribunals;
§ inform those being regulated of their legal
obligations and have relevant personnel available during normal office hours to
assist with enquiries about legislative requirements;
§ discuss specific compliance failures or problems
and provide advice on mechanisms that can be used to improve compliance;
§ confirm advice in writing when requested and
provide written advice in a clear and simple manner, explaining what and why
remedial work is to be undertaken, over what time scale and ensuring legal
requirements are explained;
§ advise those being regulated of their right of
appeal where provided by law and
§ provide alleged offenders with an opportunity to
discuss the circumstances of their case.
This Policy aligns with the Council values and guiding
principles together with the requirements of any relevant legislation.
The following factors will be considered and
balanced in making a decision as to the type of environmental incident enforcement
action that is applied:
§ the seriousness of the harm or potential harm caused by the alleged offence;
§ the level of malice or culpability of the suspect -
was the offence intentional, reckless, negligent, or a mistake?;
§ whether the alleged offender has a history of prior
contraventions;
§ the
age, physical or mental health or special infirmity of the alleged offender;
§ the alleged offender's background, including
culture and language ability;
§ whether the suspect cooperated with authorities
when the offence was detected;
§ the likelihood of the offence continuing or being
repeated;
§ any mitigating or aggravating circumstances;
§ the standard of evidence that has been collected;
§ the
length of time since the alleged offence;
§ whether
the consequences of any conviction would be unduly harsh or oppressive;
§ whether
court orders are required to prevent a recurrence of the offence;
§ the
prevalence of the alleged offence and the need for deterrence, both
specifically and generally:
§ the cost of the proposed response option compared
to the benefits of that option; and
§ the likely public perception of the offence and the
manner with which it is dealt.
However, the overriding consideration in taking
enforcement action will always be the public interest.
Council resolved to move to 6 monthly sex
service premises inspections (ie brothels, sex on premises facilities,
therapeutic massage facilities, and massage parlours), to ensure premises
conducting those activities comply with development consent and laws relating
those activities. Council also receives
information about suspected contraventions, illegal uses and non-compliances from
members of the public, other agencies and monitoring activities.
Monitoring activities include:
§ random inspections;
§ intelligence gathering;
§ routine patrols; and
§ targeted investigations.
The following hierarchy of
actions detail how incidents escalate from minor offences through to
significant offences. To assist Council in determining the appropriate action
required, premises are categorised as Low Risk or High Risk:
Low Risk
For Low Risk premises the
hierarchy of actions includes;
A technical breach is where a condition of development
consent is not being complied with such as the hours of operation or number of
persons on the premises.
A verbal direction can be given in circumstances where
there exists a technical breach and the alleged offender immediately:.
· cooperates by proceeding to take steps to comply with the informal
request;
· takes action to rectify the problem which is
the subject of the verbal direction at the time of the request / inspection;
A verbal direction wold also
be appropriate in circumstances where there exists a technical breach and prosecution is unlikely if
the person fails to comply because of the nature of the technical breach.
As many technical breaches
as are required can be issued against one site, although this is where the
judgement call will come into play. If for example a Council staff member requires
the premises to close, cease operating as they are open outside of the approved
times and they only comply for that day and they are found that this has not ceased
the daily operational requirement, this should then escalate to a formal
warning and legal enforcement.
Formal Warnings will be
issued when the operator has complied with the verbal direction but did not
show any contrition or the Council staff member considers that the incidence
would reoccur.
A formal
warning will also be used if:
§ there has been an unsatisfactory response to an
informal request;
§ the alleged offender is uncooperative or past
experience indicates that the they are unlikely to comply unless a formal
notice is issued;
§ the Council staff member requests information or
records from a third party who may be concerned about their privacy or
confidentiality obligations. The
statutory requirement to provide the information or documents will protect the
addressee against liability for a breach of privacy or confidentiality.
Formal warnings will be formally
recorded and kept in Council Records Management system.
A copy of the Formal
Warning will be posted, faxed or emailed to the person who, in the opinion of
the officer, is in possession of the approval.
All
formal warnings must:
§ be addressed
to the correct legal entity (this must be an individual or a corporation);
§ state
clearly what the warning is being given for and requires;
§ give the
addressee reasonable time to comply; and
§ be signed by
an authorised council officer
If on returning to premises after a formal
warnings has been issued and recommended action has not been taken, the Council
staff member may decide to elevate the action to appropriate legal enforcement.
(b) Penalty Infringement Notices
Council has the discretion
to issue Penalty Infringement Notices for offences under the applicable laws
(including the Environmental Planning and Assessment Act). This discretion
should be exercised in cases where the matter is not considered serious enough
to warrant a Court imposed penalty/order however the breach does warrant
punitive action.
(c) Notices and Orders
Council has the power to issue a
wide range of other notices and orders.
Council staff may use the
enforcement provisions of the Environmental Planning and Assessment Act and
related laws to regulate breaches through notices and orders.
A
notice or order may impose requirements on the addressee which may lead to
prosecution if they fail to comply.
Therefore, before deciding to issue a notice or order, it is important
to consider whether the circumstances merit this course of action or whether it
would be more appropriate to make an informal request.
Where a person is afforded the right to make representations to a notice,
Council requires those representations to be made in writing. This ensures
representation documents can be recorded and filed in Council’s record system.
After written representations are considered, representations in person may be
made if Council feels appropriate.
Council will respond to all representations in writing
(d) Brothel Closure Orders
Brothel closure orders shall only be issued on premises where Council
is able to prove the existence of prostitution. Brothel closure orders may be
used to regulate an unauthorised use of a premise or to bring premises into
compliance with its development consent. Brothel closure orders shall be issued
for serious breaches which are unable to be rectified immediately or where
there is a demonstrated pattern of disregard for the conditions of development
consent.
High Risk
Council will take a ‘zero tolerance’ approach to
High Risk premises. The following
hierarchy of actions will assist Council staff in the performance of their
duties in relation to High Risk premises:
(a) Penalty Infringement Notices
Council has the discretion
to issue Penalty Infringement Notices for offences under the Environmental
Planning and Assessment Act and related laws. This discretion should be
exercised in cases where the matter is not considered serious enough to warrant
a Court imposed penalty/order however the breach does warrant punitive action.
(b) Notices
and Orders
Council has the power to issue a
wide range of other notices and orders.
Council staff may use the
enforcement provisions of the Environmental Planning and Assessment Act and
related laws to regulate breaches through notices and orders.
A notice or order may impose requirements on the
addressee which may lead to prosecution if they fail to comply. Therefore, before deciding to issue a notice
or order, it is important to consider whether the circumstances merit this
course of action or whether it would be more appropriate to make an informal
request.
Where a person is afforded the right to make representations to a
Notice, Council requires those representations to be made in writing. This
ensures representation documents can be recorded and filed in Council’s record
system. After written representations are considered, representations in person
may be made if Council feels appropriate.
Council will respond to all representations in writing
(c) Brothel Closure Orders
Brothel closure orders shall only be issued on premises where Council
is able to prove the existence of prostitution as defined under legislation.
Brothel closure orders may be used to regulate an unauthorised use of a premise
or to bring a premise into compliance with its development consent. Brothel closure
orders shall be issued for serious breaches which are unable to be rectified
immediately or where there is a demonstrated pattern of disregard for the
conditions of development consent.
Council staff have access to a wide range of information concerning Brothels
and Related sex use premises both during and after normal office hours. Council
will manage all data and will ensure that it is accessible after hours to Council
staff who require such access to adequately carry out their duties.
4.2 Customer Request Management System (CRMS)
People involved in the
receipt of complaints must have good quality guidance as to where those
complaints are to be directed.
As a guide:
All verbal complaints shall be registered in Councils CRMS system.
All written complaints shall be registered by Councils Records
department.
4.3 Council Staff Conducting Inspections
High Risk
Council staff will inspect all complaints and
routine random inspections with a minimum of 4 staff. The Council staff shall include an officer
with the relevant qualifications and skills, and at least one female shall be
part of the 4 person team.
Low Risk
Council staff will inspect all complaints and
routine random inspections with a minimum of 2 staff. The staff shall include an officer with the
relevant qualifications and skills.
During an inspection of a
Brothel or a Related sex use premises Council staff may take a holistic
approach to the investigation. This may include, but is not limited to, the following:
· Fire Safety Issues;
· Public Health Issues;
· Compliance with Conditions of Consent; and
· Inter-agency joint operations
All inspections shall be
video recorded to capture the method of entry and for staff records. A written
file note shall also be undertaken for each inspection and all information
shall be electronically stored in a secure location within Councils records
Management system.
Complaints or information
about suspected premises can be lodged with the Council’s Customer Service
Centre on:
Telephone: 9806 5050
Facsimile: 9806 5903
E-mail: parracity.nsw.gov.au
Anonymous complaints will be investigated where
there is the potential for a serious risk to health, safety or the environment
ands sufficient details of the incidence and address are provided to identify
and investigate the matter.
All reports of
investigations are strictly confidential.
However, information may generally be made available about the outcome
of investigations and the reasons for decisions provided the information will
not cause harm to an informant, witness, or the alleged offender; or
significantly prejudice the administration of justice.
Council will delegate authority and authorise
certain Council staff under relevant legislation in order for them to carry out
their investigative duties and take necessary action.
All authorised Council staff who carry out
inspections on private land will:
§ Have delegation to enter the
premises and carry out investigations as specified
in Councils delegations; and
§ Be authorised by Council where
this is required by specific legislation to permit
inspections on private property; and
§ Carry photographic
identification demonstrating
authorisation to enter private property under
the relevant legislation; and
§ Be conscious of any requirements relating to occupational health and safety.
Section 608 of the Local Government Act allows Council
to charge and recover an approved fee for providing a service in
connection with the exercise of the Council’s regulatory functions (including
receiving an application for approval, granting an approval, making an
inspection and issuing a certificate).
Where inspections of
premises are reasonably necessary to determine if an approval has been complied
with:
(a) an approved fee may be charged for such
an inspection,
(b) an approved fee may not be charged for
such an inspection before the approval Is granted, and
(c) an approved fee may not be charged for
the inspection of any thing for which the council relies on a certificate under
section 93 of the Local Government Act that the thing has been done in
compliance with the approval.
Council has the ability
to charge an administration fee or a fee for service (that is, an inspection
fee for each inspection undertaken). In the interest of providing a fair and
equitable service which delivers value for money, fees will only be charged for
each inspection undertaken.. Council may charge either a Monitoring Fee or an
Enforcement Fee.
Council will only charge
the Monitoring Fee for inspections of premises undertaken on a routine basis as
part of Council’s Restricted Premises Monitoring program.
Inspections conducted in
response to complaints or inspections undertaken on a random basis as part of
Council’s internal audit will not incur a fee. Where breaches of the
development consent, or any other matters requiring follow up action are
identified, the subsequent follow up inspection(s) will be subject to the
Enforcement Fee. These actions may include; following up on Notices and Orders,
issuing Penalty Infringement Notices or instigating legal action.
Inspections required as
part of enforcing Land and
The quantum of the
Monitoring Fee and the Enforcement Fee are set out in Council’s fees and
charges that form part of the management plan adopted by Council on an annual
basis.
Civil
proceedings may be brought in the Land and
Criminal proceedings may be commenced where there
is sufficient evidence to prove beyond reasonable doubt that a serious offence
has been committed.
If Council staff consider prosecution to be the most
appropriate course of action preliminary advice should be sought from Council’s
General Counsel and, if sufficient evidence has been gathered, a report should
be prepared and submitted to the Council.
Where prosecution has been selected as the
appropriate option, Council will not necessarily proceed against all those who
may be potentially liable under the legislation.
The general principles that will be applied are
that proceedings will be instituted against those who are primarily responsible
for the offence and where offences are committed by employees, agents or
officers of a corporation in the course of their employment, proceedings will
usually be instituted against the corporation.
In taking action against employees their compliance
with management procedures or directions will be taken into consideration. Action will normally only be taken against
the directors of corporations where there is a failure to exercise due
diligence or where there is evidence linking a director or manager with the
corporation's illegal activity.
For some offences, legal proceedings must be
commenced no later than 2 years after the alleged offence occurs. However, all matters will be prepared for
hearing as soon as possible.
The charge or charges laid should appropriately reflect the nature and
extent of the alleged offences.
Legal proceedings
may be conducted in the
5.3 Penalty Infringement Notices
A Penalty Infringement Notice can be issued for an
office under the Environmental Planning and Assessment Act or other relevanr
laws depending on the circumstances of the incident.
Any person who is aggrieved by a decision can contact
Council staff to discuss the decision.
Formal complaints can be lodged with Council by mail,
fax or e-mail:
Mail: The Chief Executive Officer
Facsimile: 9806 5903
E-mail: parracity.nsw.gov.au
Council must observe the Information Protection
Principles set out in the Privacy and Personal Information Protection Act 1998.
Personal information may be shared with other
agencies for law enforcement purposes and Council will share such information
where appropriate.
Regular audits will be undertaken on a random
sample of complaints investigated. These audits are to be carried out by an
independent person/agency including, but not limited to, Council’s internal
audit and review section, and/or independent officers from other Local
Government areas.
Regular meetings shall also be conducted with
Council’s Senior Management, Internal Audit and Review and General Counsel
regarding the inspection program for premises covered by this Policy.
This Policy will be reviewed at 3 yearly intervals by its
anniversary date or at any such other time as required by the Parramatta City Council
to reflect changes in enforcement legislation.