12 In the context of licensing provisions, it is common for parliaments to empower some form of tribunal to conduct an inquiry with a view to making orders about the licensee. Cases arising in such circumstances can be found in broadcasting law,[12] prostitution control,[13] and travel agents' licensing.[14]
13 In Tarson Pty Ltd v Holt[15] - a case concerning a travel agent's licence - Beach J of the Supreme Court of Victoria identified the following question for determination: whether an inquiry to be conducted by a travel agents' licensing authority was inquisitorial in nature, allowing the authority to follow the evidence called before it wherever it leads, or whether the proceedings are adversarial in nature, the outcome of which may determine the rights of a party to the proceedings and result in the imposition of some form of penalty on that party. Beach J answered this question by preferring the latter, observing that in arriving at its determination the authority should be confined to the material placed before it by the Director of Consumer Affairs, on the one hand, and the licensees, on the other hand. Beach J considered the various cases that had been decided under other legislation, particularly broadcasting licensing, but distinguished these cases, observing that the answer is to be found in the provisions of the relevant Act itself.
14 In Casey v Vietnamese Recreational & Cultural Club Inc Judge Dove reserved for future consideration whether Parliament intended an inquiry under section 90 of the Liquor Act to be adversarial or to be in the nature of an inquisition. As this question is relevant to the present proceeding and has significant implications for the ongoing business before the tribunal, I think it is desirable that I express my views on this matter at this stage.
15 In my opinion, it is a mistake to seek to characterise a section 90 inquiry as solely inquisitorial or solely adversarial. The proceeding contains elements of both.
16 The following matters point to the inquiry being adversarial in nature. An inquiry can only be initiated by certain specified persons (and not by the tribunal). An inquiry can only be initiated if a specified person considers that a licensee has engaged in some undesirable conduct or is otherwise not a suitable person to hold a licence. The initiation of an inquiry can result in significant penalties being imposed upon the licensee and those associated with the licensee. These factors are reinforced by the nature of the subject matter - being disciplinary in character - and the role of licensing inspectors in maintaining industry standards.
17 The following matters point to the inquiry being inquisitorial in nature. The Parliament has identified the nature of the proceeding as "an inquiry": a word that is usually reserved for proceedings having an inquisitorial element. The Parliament has given the task of conducting the inquiry to VCAT and not a court. VCAT is a body which is not bound by the rules of evidence but may inform itself on any matter as it sees fit[16] provided it acts fairly and according to the substantial merits of the case.[17]
18 In my opinion, the nature of the proceeding is both adversarial and inquisitorial - if you like, it is a hybrid. Thus the nature of the proceeding may be described as "an assisted inquiry". This has implications as to the appropriate procedure which should be followed in the conduct of such an inquiry.
19 Because the nature of the inquiry is hybrid, it is possible for the tribunal to follow the evidence called before it wherever it leads. Thus the tribunal may identify a person against whom an order might be made under section 92 of the Liquor Act. In this case, before any order is made, it would be essential that a fair process be followed in relation to such a person. However it is also entirely appropriate for the applicant to identify the persons against whom orders will be sought - and the nature of such orders - as this is consistent with the adversarial element of a section 90 inquiry. Indeed, this will usually be the preferable course. Moreover I do not see this as inconsistent with the undoubted truth that it is the tribunal, and not the applicant, that conducts the inquiry.[18]