16.3.1 Contemporaneous notes 16.3.2 Photographs 16.3.3 Interviewing alleged offenders or witnesses 16.3.4 Exercising care when handling and storing evidence 16.4 Proof of evidence: evidentiary certificates 17 Procedure for Issuing and Service of Notices, Orders or Other Documents 17.1 Overview 17.2 Service of infringement notices 17.3 Service of official warnings 17.4 Withdrawal of infringement notices and official warnings 17.5 Service and procedural requirements under s. 221 PHWA Part E: Special Powers: Risks to Public Health and Emergencies 18 Public Health Risk Powers 18.1 Overview 18.2 Public health risk powers 19 Emergency Powers 19.1 Overview 19.2 Emergency powers Part F: Review 20 Complaints About Authorised Officers 20.1 Overview 20.2 Complaints to councils 20.2.1 Can a person complain to the council? 20.2.2 What format can a complaint be in? 20.2.3 What must council do when a complaint is received? 103 103 103 103 104 105 105 105 106 106 108 109 109 109 112 112 112 114 115 115 115 115 116 116 20.2.4 What action can be taken by councils after considering a complaint? 116 20.3 Complaints to the Ombudsman 20.3.1 Can a person complain to the Ombudsman? 20.3.2 What power does the Ombudsman have? 21 Administrative Review of Council Decisions 21.1 Overview 21.2 Prescribed accommodation and business premises 21.2.1 VCAT review 21.3 Improvement notices and prohibition notices
Part A: Background Part A provides an overview of the PHWA as concerns councils and is divided into three Chapters (1-3). Summary of Chapters Chapter 1 Chapter 2 Chapter 3 > > > > > the purpose of the PHWA and the overall role and functions of councils in public health in Victoria and how this differs from the role and functions of the Victorian Department of Health. Details the key principles which must guide and influence all decisions made and actions taken in respect of the PHWA and how they apply to authorised officers. Demonstrates when and how a council can appoint an authorised officer for the purposes of the PHWA. Explains the difference between authorised officers who are EHOs and those who are not and the overall roles of each. Differentiates between council appointed authorised officers and those appointed by the Secretary to the Department of Health. Public Health and Wellbeing Act 2008 - Guidance Manual 1
4.2 4.2.1 What is a nuisance? Definitions The nuisance provisions in the PHWA apply to nuisances which are, or are liable to be, dangerous to health or offensive Such nuisances are, but are not limited to, nuisances arising from or constituted by any5: (a) (b) (c) (d) (e) (f) (g) premises; water; animals, refuse; noise or emission; state, condition or activity; or other matter or thing which is, or is liable to be, dangerous to health or offensive . When determining whether a nuisance is dangerous to health or offensive: > > 4.2.2 regard must not be had to the number of persons affected or that may be affected. Therefore, although only a few people may be affected by a nuisance, the nuisance may still fall within the nuisance provisions and require investigation; and regard may be had to the degree of offensiveness. Is it dangerous to health? The term “dangerous to health” is not defined in the PHWA. However, note that something can be dangerous to both a person’s physical health and also to their mental health. 4.2.3 Is it offensive? A significant difference between the Health Act and the PHWA is that the meaning of “offensive” has been given a narrower definition in the PHWA. “Offensive” is now defined as “noxious or injurious to personal comfort” rather than being “noxious, annoying or injurious to personal comfort” [emphasis added]. The removal of the word “annoying” means that a nuisance must now be more than solely or merely “annoying”. Something that is merely annoying is a subjective notion associated with a person’s amenity which is something that might not actually be harmful to health. It is intended that matters which are merely annoying be separately dealt with through other avenues of redress such as through local laws, the Environment Protection Act 1970 (Vic) or the planning system under the Planning and Environment Act 1987 (Vic) or even privately between parties (which is a remedy available to councils in some circumstances). 5
Checklist for prescribed accommodation Questions to ask Step Three Is the accommodation exempt under regulation 14 of the Public Health and Wellbeing Regulations 2009? Is the accommodation exempt because of the number of people not related? Regulation 14(i) Public Health and Wellbeing Regulations 2009? Type of accommodation A house under exclusive occupation of the occupier Self contained flat under the exclusive occupation of the occupier (consisting of suite of rooms that forms a portion of a building and includes kitchen, bathroom, toilet and is a self contained residence) Temporary crisis accommodation Health or residential service Nursing home Retirement village Caravan park or movable dwelling Vessel, vehicle, tent or caravan Premises in which, other than the family of the proprietor, not more than 5 persons are accommodated, and which is NOT a rooming house. Tick Box 28 Public Health and Wellbeing Act 2008 - Guidance Manual
Standards and requirements for prescribed accommodation Regulation Summary Prosecution: Notes maximum penalty for offence 23 Refuse 24 Refuse Must: (a) provide sufficient vermin- proof receptacles (e.g. bins) at the prescribed accommodation for the collection and storage of all rubbish; and (b) ensure that the receptacles are regularly cleaned. Must ensure that all refuse at the prescribed accommodation is regularly removed by a council refuse collection service or by a private contractor. 20 penalty units 20 penalty units 25 Toilet and Bathing Must provide at least one toilet, one bath or shower and one wash basin for every 10 persons or fraction of that number of persons occupying 20 penalty units Infringement notice may be issued- penalty of 4 penalty units. the accommodation. 26(1) Register Must keep a register recording: (a) the names and addresses of persons occupying the accommodation; and (b) the dates of their arrival and departure. Note: an exemption to this requirement is if the proprietor is required under any other Act or regulation to keep a similar register- reg. 26(2). 20 penalty units 26(3) Must retain the register or similar register required to be kept under regulation 26(1) or (2) for at least 12 months after the date of the last entry in 20 penalty units Infringement notice may be issued- penalty of 4 penalty units. the register. Public Health and Wellbeing Act 2008 - Guidance Manual 33
Aquatic Facilities Regulation 37 Maintenance 38 Clarity of Water 39 Treatment of Water 40(1) Microbiological Quality 40(2) Summary Must ensure that aquatic facility is maintained and tested in accordance with regulations 38 to 48. Must ensure that when an aquatic facility is ‘open for use’, the water in the aquatic facility is maintained in a clear condition, so that the floor of the aquatic facility or any lane marker or object on the floor of the aquatic facility is clearly visible when viewed from either side of the aquatic facility. Must ensure that when an aquatic facility is open for use that the water in the facility is treated with chlorine or bromine based disinfectant in accordance with the parameters set out in the tables in this regulation. When an aquatic facility is open for use the microbiological standard of the water must be maintained within the following parameters - (a) a heterotrophic colony count less than 100 colony forming units per millilitre; (b) coliform bacteria is not detected in 100 millilitres; (c) pseudomonas aeruginosa is not detected in 100 millilitres. Within 24 hours of receiving a report that any sample of water taken from an aquatic facility does not comply with regulation 40(1) the responsible person must ensure the following steps are taken: (a) the water must be shock dosed with chlorine or bromine; (b) the water treatment program and maintenance program must be reviewed; (c) any faults must be corrected and any changes necessary to prevent a re-occurrence of those faults must be implemented; (d) a further sample of the water in the aquatic facility must be taken and delivered to a laboratory to assess compliance with regulation 40(1). Penalty 20 penalty units 20 penalty units 20 penalty units 20 penalty units 20 penalty units Public Health and Wellbeing Act 2008 - Guidance Manual 49
Situation An authorised officer has seized a thing or has taken a sample of or from a thing at the premises An authorised officer retains possession of a document seized from a person Document or Power of Authorised Officer and Procedural Requirements Section 177: Authorised officer must give a receipt in the form approved by their council to the person in charge of the thing or the premises from which it was taken. The receipt must: · identify the authorised officer’s name; · identify the thing seized or sample taken; · state the reason why the thing was seized or the sample was taken; and · include anything else that must be on the approved form. If authorised officer cannot give a receipt to a person, the authorised officer must leave the receipt in a conspicuous position and in a reasonably secure way (e.g. leave in letterbox) or send the receipt to the occupier of the premises. Appendix 2 is a sample receipt for a seized thing or sample taken. Section 178: Authorised officer must give the person a copy of the document seized within 21 days of seizure and the authorised officer must certify it as being correct copy. Section 179(1): Notes Does not apply to seizure pursuant to search warrants - only seizure in accordance with s. 175. Does not apply to search warrants. Does not apply to thing has been seized, but reason for its seizure no longer exists Authorised Officer must take reasonable search warrants. steps to return document or thing to person it was seized from. Document or thing has been seized and has not been returned within 3 months of seizure because it is still needed Section 179(2): Authorised officer must take reasonable steps to return seized document or thing within 3 months of seizure unless: · legal proceedings related to the purpose for which the document or thing was seized have been commenced, but have not been completed yet; or · the Magistrates’ Court makes an order under s. 180 extending the period for which the document or thing can be seized. Does not apply to search warrants. Public Health and Wellbeing Act 2008 - Guidance Manual 69
16 Evidence Summary > > 16.1 Outlines the ramifications for having deficiencies in evidence, particularly evidence that has been illegally or improperly obtained. Outlines proper procedures and methods for gathering evidence to ensure the quality of that evidence. Overview The PHWA and the Public Health and Wellbeing Regulations 2009 allow councils to make numerous decisions, including but not limited to: > > decisions about the registration of premises; and decisions about the range of enforcement mechanisms to implement in the event of a breach or likely breach. All decisions made under the PHWA or the Public Health and Wellbeing Regulations 2009 must be based upon evidence capable of supporting the decision. Evidence must be legally obtained and it must be of a sufficient quality to effectively enable its use. Evidence plays a critical role in establishing a case in court when prosecuting an offence and can be called upon when various decisions are reviewed and/or appealed. It is of utmost importance therefore that those responsible for investigating and obtaining evidence for the purposes of the PHWA (typically authorised officers) follow proper practice and procedures to ensure the validity of that evidence and therefore also the decisions upon which that evidence is based. This Chapter highlights the ramifications of deficiencies in evidence and provides guidance on proper procedures and methods for gathering evidence to ensure the quality of that evidence. 16.2 Deficiencies in evidence Deficiencies in evidence result from failures to abide by the rules of evidence. Of most relevance to the type of evidence obtained by authorised officers under the PHWA is the legality of that evidence. Illegally or improperly obtained evidence is evidence obtained by an authorised officer acting outside the scope of their powers or in breach of their powers. Where evidence has been obtained through unlawful or improper means, courts have a discretion whether or not to allow that evidence as being admissible in a proceeding27. Courts will tend to disallow illegally or improperly obtained evidence where the public interest in disallowing that evidence outweighs the use of that evidence. The effect of evidence being rendered inadmissible is that a prosecution upon which it depends may fail or a decision made on the basis of that evidence may be deemed invalid on a review or appeal of that decision. 27 The High Court of Australia in R v Ireland (1970) CLR 321 per Barwick CJ at 335 and affirmed in Bunning v Cross (1978) 141 CLR 54.
Part G: Other Part G is divided into 3 Chapters and relates to other Parts of the PHWA not specifically discussed elsewhere in this manual. This Part is divided into 3 Chapters (22-24). Summary of Chapters Chapter 22 Chapter 23 Chapter 24 124 > > > Sets out the for the period to the new the effect of in the the made by the PHWA as part of the broader reforms to the Food Act. Public Health and Wellbeing Act 2008 - Guidance Manual
Appendices Contents Appendix 1 – Sample notice of entry Appendix 2 – Sample receipt for the seizure of a thing or a sample taken Appendix 3 – Sample improvement notice and prohibition notice Appendix 4 – Sample infringement notice Public Health and Wellbeing Act 2008 - Guidance Manual 129
Checklist For Actioning Nuisance Questions to Ask Has someone made a complaint to Council regarding an alleged nuisance Has the authorised officer investigated the complaint? Has the authorised officer come to a conclusion as to whether or not the complaint results in a nuisance? If no nuisance is found to exist, council should notify the person who made the complaint and advise accordingly. If a nuisance is found to exist the council can use the following methods to try to achieve a remedy for the nuisance Tick Box > > > > If the land is unoccupied or the owner cannot be found, council can enter onto the land and abate the nuisance. If the owner or occupier is identifiable the council can issue an improvement notice or prohibition notice. If the nuisance is serious enough to warrant prosecution, the council can bring proceedings against the person who caused the nuisance. If council was of the view that the matter is best deal with privately, the council can advise the person who made the complaint of any available methods for settling the matter. Public Health and Wellbeing Act 2008 - Guidance Manual 137
Checklist For Registration of Prescribed Accommodation Questions to Ask Step One Does the accommodation fall within the definition of “prescribed accommodation” in the PHWA”? Step Two Is the accommodation prescribed in regulation 13 of the Public Health and Wellbeing Regulations 2009? Step Three Is the accommodation Type of Accommodation Any area of land which a person or persons are frequently, intermittently or seasonally permitted to use for camping on payment of consideration and any facilities provided on the land for the use of that person or those persons. Any premises used as a place of abode, whether temporary or permanent, fixed or mobile, where a person or persons can be accommodated on payment of consideration. Any accommodation provided to an employee in accordance with a term of an award governing the employment of the employee, or a term of the employee’s contract of service, for use by the employee during that employment or service. Residential accommodation Hotel Motel Hostel Student dormitory Holiday camp Rooming house A house under exclusive occupation of the occupier Tick Box exempt under regulation 14 of the Public Health and Wellbeing Regulations 2009? Self contained flat under the exclusive occupation of the occupier (consisting of suite of rooms that forms a portion of a building and includes kitchen, bathroom, toilet and is a self contained residence) Temporary crisis accommodation Health or residential service Nursing home Retirement village Caravan park or movable dwelling Vessel, vehicle, tent or caravan 138 Public Health and Wellbeing Act 2008 - Guidance Manual
Checklist For Registration of Prescribed Accommodation Questions to Ask Is the accommodation exempt because of the number of people not related? Regulation 14(i) Public Health and Wellbeing Regulations 2009? Type of Accommodation Self contained flat under the exclusive occupation of the occupier (consisting of suite of rooms that forms a portion of a building and includes kitchen, bathroom, toilet and is a self contained residence) Temporary crisis accommodation Health or residential service Nursing home Retirement village Caravan park or movable dwelling Vessel, vehicle, tent or caravan Premises in which, other than the family of the proprietor, not more than 5 persons are accommodated, and which is NOT a rooming house. Tick Box Public Health and Wellbeing Act 2008 - Guidance Manual 139