Victorian Civil and Administrative Tribunal|1999-12-01

Office of Fair Trading v Brcic [1999] VCAT 1988 (1 December 1999)

Prostitution Control Act 1994 - the nature of various inquiries arising under sections S48 and 48A - the matters to which the Tribunal must have regard in an inquiry under s48(3)(f) are associated with the fact of the charges having been laid not the likelihood of their success - there must be a reasonable amount of material available to a licensee and thus to the Tribunal to establish the nature of the evidence that supports the charges - charges must have been laid upon a foundation of proper inquiry and investigation and be laid without male fides - the seriousness of the charges within the scheme of the Act or the general criminal law must be examined.

DATES OF HEARING: 9th, 13th and 14th SEPTEMBER 1999

Order the licence of the Respondent be suspended forthwith and that in accordance with section 41 the Respondent return her licence to the Business Licensing Authority within 7 days.

1. Some of the following reasons were canvassed when the Tribunal refused the Respondent's request for an adjournment, but bear repeating as this is the first application by the Director under section 48 of the Prostitution Control Act 1994 (the Act).

2. On 12 August 1999 the Applicant was charged with 8 offences (see Exhibit B) -

* charge 1 inducing a child under 18 to take part in an Act of prostitution contrary to section 5

* charge 2 obtaining payment for sexual service provided by a child contrary to section 6

* charge 3 allowing a child to enter or remain on premises for the purposes of taking part in an act of prostitution contrary to section 11

* charges 4 5 and 6 inducing a person to engage or continue in prostitution by offering to supply a drug of dependence contrary to section 8

* charges 7 and 8 carry on a business in partnership with an unlicensed person contrary to section 57.

3. On the 18 August 1999 the Director applied under section 48(1) of the Act for the Tribunal to conduct an inquiry to determine if there are any grounds for taking action under section 48A. Section 48 (3)(f) provides that there are grounds for taking action under section 48A if the licencee has been charged with an offence referred to in section 47(1)(a), (b) or (c) or section 48(3)(b), (c) or (e).

4. In this case the Respondent has been charged with offences that fall within sections 47(1)(c), 48(3)(b) and 48(3)(e)

5. On 26 August 1999 the Tribunal ordered that an inquiry commence on 9 September 1999 which was within the 30 day period otherwise required by section 48(5).

(1) In addition to any other powers of the Tribunal under this Act it may, if satisfied that there are grounds for taking action against a licensee under this section, by order do one or more of the following--

and thereafter follows a series of actions (or penalties) of increasing severity commencing with a reprimand and concluding with ineligibility to hold a licence on a permanent basis.

7. At the same time however section 48A(2) states that "Despite anything to the contrary in sub section (1) the only action the Tribunal may take solely on the ground set out in section 48(3)(f) is to suspend the licence".

8. The mandatory nature of that subsection is quite stark and although the word "solely" seems oddly placed, we have no doubt that the charges preferred against the Respondent in this case come within section 48(3)(f) and that section 48A(2) mandates suspension if the Tribunal determines to take action as a result of this inquiry. The Tribunal may also interpolate here that it is of the view that the suspension has to be made without any fixed period in contrast to section 48A(1)(g) which refers to a suspension not exceeding one year.

THE NATURE OF THE VARIOUS INQUIRIES UNDER SECTION 48

9. We should state at the outset that the nature of an inquiry under section 48(3)(f) arising out of the laying of criminal charges is very different from that under the other sub sections. Inquiries initiated under section 48(3)(b) and (c) rely upon matters that have been proved elsewhere and requires the Tribunal to make an assessment of the type of action to be taken. Inquiries initiated under section 48(3)(a), (d), (da), (e), and (g) rely upon matters that leave the issue of the use, management, involvement of others, commission of an offence or contravention (as the case may be) as one that has to be determined by the Tribunal before it could be satisfied that it should take action as a result of its inquiry. Again the Tribunal will have to make an assessment of "penalty". An inquiry under section 48(3)(f) has as its basis the fact that charges have been laid and, as previously stated, the action to be taken if the Tribunal exercises its discretion as a result of the inquiry is a mandatory suspension.

10. When refusing the request for adjournment made by the Respondent at the commencement of this case on 9 September 1999, we indicated that this was not an inquiry that requires us to decide whether there is guilt. Further the inquiry is not in the nature of a committal or a bail application. It is in our view a separate and distinct form of action that requires us to formulate some sort of tests to apply to decide if action should be taken.

11. We are not required to act as a court hearing criminal charges but to examine matters according to a scheme enshrined in Act that is expected to confer a public benefit in controlling the Prostitution industry. The Act manifests the control of the industry in a number of different ways. It includes the ultimate sanction of imprisonment if a regulated person is found guilty of a criminal offence according to the normal processes and proofs that the criminal law requires. It also provides for a power to deal with an administrative review of the decisions of others. The role of the Tribunal under the Act is clearly protective of the community not punitive of the licencees. In our view an inquiry is not intended to be reflective of or emulate the criminal processes in a court or the administrative review of a decision maker in a Tribunal.

12. We believe that the matters which we shall state as being those to which we should have regard in an inquiry under section 48 are consistent with the role of the Tribunal in the scheme of regulation (and inquiries) contained in the Act.

THE PROCEDURE AND MATTERS TO WHICH THE TRIBUNAL SHOULD HAVE REGARD IN AN INQUIRY UNDER SECTION 48(3)(f)

13. We are of the opinion that for any inquiry to proceed there must be a reasonable amount of material available to a licensee (and thus to the Tribunal) to establish the nature of the evidence that supports the charges that are being brought by the prosecution in the proposed criminal case.

14. In our view there is a clear injunction upon the Tribunal to proceed and not wait for hand up briefs or committals or any action in other courts. We say that arises from the fact that the legislation provides in section 48(5) for a 30 day period before the Tribunal is allowed to start an inquiry (except in exceptional circumstances). Had there been an intention to wait for any specific event such as the provision of a hand up brief as suggested by the Respondent when seeking an adjournment in this case, or the conclusion of a committal hearing the legislation would have provided for same.

15. The 30 day period (unless it is reduced) is to be used to allow a reasonable time to prepare a response to any information additional to the material already in the possession of any person charged with an offence. In this case for example, the Applicant complied with the order of the Tribunal made 23 August 1999 to provide material upon which the Applicant proposed to rely, by serving and filing a copy of the statement of Detective Senior Constable Jason Michael Knott which became exhibit 1. We anticipate the provision of similar information will be a part of any inquiry under section 48(3)(f).

16. In any inquiry under section 48(3)(f), the Applicant takes the risk on the material upon which it relies and the Respondent the risk as to the evidence that is provided in response to establish the matters which we believe we must refer to determine our discretion to take action. In that regard the Tribunal is minded of the provisions of the VCAT act section 105 that precludes any reliance upon the normal grounds of refusal to answer questions that might tend to incriminate and when so doing that the matters given in evidence may not be used in any criminal proceeding. It is a substantial variation from the norm and gives a Respondent in an inquiry such as this an opportunity to give detailed and direct responses to the matters raised by the Applicant in any inquiry without fear that any answers that may be incriminatory might be used elsewhere.

17. Whilst noting the existence of section 105, the Tribunal is also mindful that it is unlikely to be used in many cases by a Respondent choosing to give evidence, although its use in testing the evidence of others who have provided statements to the prosecution might be a more acceptable course. In any event, in this case (where the Respondent did not give evidence or call any witnesses who have made statements to the police) we are of the view there was in any event sufficient and reasonable information made available to the Respondent to deal with the issues before the Tribunal.

18. In that regard we say as we did when the application for adjournment was made by the Applicant on 9 September 1999 that in addition to the written statement provided by Detective Senior Constable Knott the Respondent had received information regarding her charges when charged on 12/8/99 and the Respondent would have also been privy to a remand summary at the time of bail application.

19. From the forgoing it will be seen that in any section 48(3)(f) inquiry there will be limited evidence available to the Tribunal. It is the limited nature of the evidence that eventually points the Tribunal to the matters to which it should have regard to decide if it is to take action or not.

20. We say that the scheme of the Act in relation to an inquiry under section 48(3)(f) is that the matters to which we have regard must be associated with the fact of the charges being having been laid not the likelihood of the successful prosecution of the charges. If it were otherwise the legislation would provide for it.

21. However that cannot mean that the simple act of laying of charges would of itself require that the Tribunal has to find against a licencee. Otherwise there would be little point in having an inquiry especially having regard to the mandatory outcome. If the laying of charges was sufficient it might be reasonable to expect that the legislation could have provided for a suspension without any inquiry or a mandatory suspension with an option to the licencee to apply to have the licence not so suspended.

22. Because there is a requirement to hold an inquiry and discretion as to whether to take action, there must be something to which the Tribunal must have regard in the laying of the charges before it should take any action.

23. We believe having determined that the Respondent has sufficient information as discussed, that for us to take action following an inquiry we have to determine if the charges were laid upon a proper foundation of inquiries and investigations and were laid without male fides on the part of those involved in the process. Further we have to look at the seriousness of the charges within the scheme of the Act or the general criminal law.

24. Dealing with the last matter first, we say that there are no more serious charges that can arise under the Act than those involving child prostitution (see section 5 and 6 and the objects of the Act in section 4 and the Second Reading speech 21 October 1994).

25. The other assessments have to be made on the evidence of the Applicant and of any persons associated with the making of those charges. We would remind the parties of our statement concerning section 105 applying equally to the evidence of those persons with whose assistance the charges are formed. Again we say that the giving of such evidence would not go to the proving or strength of the crown case, but whether the crown case is built upon proper principles and not based on any motive that evidences bad faith by any witness or any person involved in the case against the licencee.

26. It follows, as a consequence of the above, that we also believe that the strength of the crown case is not a matter to which we should have regard per se and indeed that is supported by an examination of the scheme of the Act and the sections relating to inquiries. We would add that examining the strength of the crown case would be not dissimilar to conducting a committal hearing.

27. Having said that however we would be remiss if we did not remark that the evidence in this case is such that on the matters raised before us there is relevant, probative and admissible evidence that exists in relation to charges 1 and 3 and 7 and 8. We of course point out that the evidence for all charges is based upon the summation of all the evidence as provided by one person (the case officer Detective Knott) and would not in the form in which it was received in this Tribunal be admissible in any criminal proceeding.

28. In this case the Respondent has had the opportunity to cross examine Detective Knott in detail and give such evidence as she considers appropriate to bring us to any conclusion that the charges were laid without a proper foundation of inquiries and investigations or were laid without bona fides or were not of a serious nature. There is nothing in the material and evidence before us that supports any of those matters which we believe would require us to not take action as a result of this inquiry. Accordingly we make the following findings and orders -

* The Respondent licencee has been charged with offences that are referred to in sections in 47(1)(c), 48(3)(b) and 48(3)(e).

* Section 48 (3)(f) provides that there are grounds for taking action under section 48A if the licencee has been charged with an offence referred to in section 47(1)(a)(b) or (c) or section 48(3)(b)(c) or (e).

* The Tribunal for the reasons expressed is of the view that after holding an inquiry it should take action against the Respondent licencee under section 48A; and

* Since this action is based on the Respondent licencee being charged with offences referred to in section 48(3)(f), the only order the Tribunal may make by virtue of section 48A(2) is to suspend the licence of the Respondent.

30. Order the licence of the Respondent be suspended forthwith and that in accordance with section 41 the Respondent return her licence to the Business Licensing Authority within 7 days.

Office of Fair Trading v Brcic [1999] VCAT 1988

At a glance

Court

Decision date

Source

Judgment (46 paragraphs)

Office of Fair Trading v Brcic [1999] VCAT 1988 (1 December 1999)

Parties

Legislation Cited (1)