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Item 7.2
- Attachment 2 |
Draft
Restricted Premises - Enforcement Policy |
RESTRICTED PREMISES – ENFORCEMENT POLICY
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 as defined under the Environmental Planning and
Assessment Act 1979 and should be read in conjunction with the Parramatta City
Council’s Enforcement Policy.
This Policy has been
prepared to facilitate a consistent approach across Parramatta City Council on
the way business operators and the associated premises are managed and enforced
pursuant to relevant environmental Planning & Assessment Act and other relevant legislation.
This Policy will help align
enforcement actions across all arms of Council, namely the Regulatory Services
and Development Services Units, as they monitor and regulate business
activities and premises within the Parramatta City Area.
This Policy can be applied
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.
For the purposes of this
policy, Parramatta City Council will adopt the following definitions:
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.
Premises
may constitute a brothel even though used by only one prostitute for the
purposes of prostitution.
Fees
Monitoring Fee
– The monitoring fee applies to inspections undertaken by Council on a routine
basis to ensure compliance with development consent.
Enforcement Fee
– The enforcement fee applies to inspections that are undertaken for the
purposes of taking enforcement action following instances of breaches of the
development consent and/or the Environmental Planning and Assessment Act
High
Risk Premises include:
a) Brothels
b) Massage Parlours where:
a. there are justified concerns of
unauthorised sex related activities occurring on the site;
b. previous history indicates a pattern
of unauthorised sex related activity
c. complaints have been received from
the public alleging unauthorised sex related activities
c) Where Council has identified the
potential for an Occupational Health and Safety risk to Council Staff
Low
Risk Premises include: all other premises as identified by
Council
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 common Brothel and
Related Sex Use Premises Policy across the Parramatta City Council (PCC) to
provide regulation enforcement criteria to align with the City’s “umbrella” Enforcement
Policy and this policy will:
· Confirm that PCC has a minimal tolerance approach
to unlawful activity and non compliance with Development Consents.
· To 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’s Authorised Officers will apply in its compliance and enforcement
activities relating to Brothels and Related Sex Use Premises;
§ to provide guidance to authorised officers in the
use of enforcement options;
§ to implement a fair and equitable enforcement
system consistently across the Council area and
§ To provide a mechanism to enable Council to recover
the costs of regulating and monitoring Brothels and Related Sex Use Premises
1.4.
Parramatta City Council
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
guidelines align with the values and principles of Parramatta City Council
along with the requirements of any relevant legislation
Council Authorised Officers
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
principles along 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 suspect 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 the
uses comply with the conditions of the Development Consent. 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 in the determination of the action required,
premises are categorised as follows:
Low Risk
The hierarchy of actions includes;
a) Technical Breaches – “Minor Offences”
Verbal and Formal (written) warnings
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 and they comply with
that direction immediately.
· the person cooperates and they are willing to comply with an informal
request;
· the problem can be rectified at the time of
the request / inspection;
· prosecution is unlikely if the person fails
to comply.
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 officer 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 office was of the belief that the incidence would
reoccur.
A formal
warning will also be used if:
§ there has been an unsatisfactory response to an
informal request;
§ the person is uncooperative or past experience
indicates that the they are unlikely
to comply unless a formal notice is issued;
§ you are requesting 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; or
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.
To be
valid 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 issuing officer needs to elevate the action to appropriate legal enforcement.
b) Penalty Infringement Notices
Council has the discretion
to issue Penalty Infringement Notices for breaches of 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 under various pieces of legislation.
Regulatory and Development Officers,
may use the enforcement provisions of the Environmental Planning and Assessment
Act 1979 to regulate breaches through notices and orders of the Consent.
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 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.
High Risk
Council will take a zero tolerance approach to High
Risk premises. The following hierarchy of actions will be followed:
a) Penalty Infringement Notices
Council has the discretion
to issue Penalty Infringement Notices for breaches of 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.
b) Notices and Orders
Council has the power to issue a
wide range of other notices and orders under various pieces of legislation.
Regulatory and Development Officers,
may use the enforcement provisions of the Environmental Planning and Assessment
Act 1979 to regulate breaches through notices and orders of the Consent.
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.
Authorised Officers will have access to a wide range of information on 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 all
Authorised Officers 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 Staff Conducting Inspections
High Risk
Council will inspect all complaints and routine
random inspections with a minimum of four (4) staff. The 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 will inspect all complaints and routine
random inspections with a minimum of two (2) staff. The staff shall include an officer with the
relevant qualifications and skills.
During an inspection of a
Brothel or related sex use premises Council Officers 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 staff under relevant legislation in order for them to carry out their
investigative duties and take necessary action.
All Authorised Officers 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 each
specific Act; and
§ Be conscious of any requirements relating to OH&S.
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 only if the charging of the
fee has been included as a condition of the approval, and
(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 that the thing has been done
in compliance with the approval.
An approved fee charged
for inspecting premises must be repaid to the person who paid it if the
inspection is not carried out.
Council has the ability
to charge an administration fee or a fee for service ie 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 rather than a one-off fee. Council has the ability to
charge either one of two fees, either a Monitoring Fee or an Enforcement Fee.
Application of these fees is as defined by this Policy.
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 inspection fee
schedule is as per Council’s fees and charges as adopted in the Management
Plan.
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 the investigating officer considers 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.
The time for commencing proceedings may range up to
2 years, depending on the particular offence.
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.
Matters heard in the
5.3 Penalty Infringement Notices
A Penalty Infringement Notice (PIN) can be issued
under the provisions of the Environmental Planning and Assessment Act depending
on the circumstances of the incident.
Any person who is aggrieved by a decision can contact
Council officers to discuss the decision.
Formal complaints can be lodged with Council by mail,
fax or e-mail:
Mail: The CEO
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 three (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.