Prosecutions policy

Purpose

The Building and Plumbing Commission (BPC) regulates the building and plumbing industries. Court action by the Authority, whether commencing a prosecution or seeking an injunction, is a key tool to address non-compliance, hold parties to account for offences, and drive practitioners to deliver compliant building and plumbing work for consumers. These actions complement other measures available to the Authority, including discipline.

This policy sets out the Authority's approach to court actions and describes the criteria that we consider when determining:

• whether to commence a prosecution
• who to prosecute
• which charges to lay
• other matters relevant to the Authority exercising its role as a prosecutor
• matters relating to seeking an injunction.

This policy is written in alignment with the Building Act 1993 (the Act). It also is written having regard to, and where applicable, in accordance with the Policy of the Director of Public Prosecutions (DPP Policy) currently in force, taking into account the differences between the Authority and the DPP. We adopt the general approach of the DPP Policy, and in particular the approach to prosecutorial discretions concerning reasonable prospect of conviction, and public interest.

Scope

The audience of this policy is Victorian consumers, building and plumbing practitioners and BPC employees. It is published to ensure the Authority is transparent and accountable in its approach. Its scope includes the matters listed above in 'Purpose'. Unless directly relevant, it excludes:

• consumer complaints and investigative processes
• preliminary processes that may occur prior to court action (for example, enforceable undertakings)
• disciplinary action
• the exercise of remedial tools and powers to bring about compliance, such as Directions to Fix and Rectification Notices
• similar prosecutions or actions by Municipal Building Surveyors (MBS) and councils.

The role of prosecutions

What is a prosecution?

A 'prosecution' is a criminal proceeding, where contraventions of the criminal law are alleged. The BPC may file charges against a person or body corporate for breaches of the Act and the Domestic Building Contracts Act 1995.

The role of a prosecution is to penalise the offender, deter reoffending (specific deterrence), and deter others from offending (general deterrence). Deterring future breaches through prosecution, and publishing information on the nature and outcomes of prosecutions, serves to promote overall compliance with the law. The Authority may prosecute offences by any person (in contrast to disciplinary action, which is restricted to registered practitioners).

Key offences that may be prosecuted relate to building without a permit, breach of building permit, building without insurance, misrepresentations of insurance status, and taking of money outside of contract terms.

Where an offence is committed by a registered practitioner, the Authority can prosecute the offence, take disciplinary action, or pursue both. The Authority may also take an educational approach for less serious conduct, in line with our Compliance and Enforcement Policy Framework.

An enduring priority of the Authority's prosecutions is a focus on unregistered practitioners. This is because the conduct of unregistered practitioners undermines the operation of the regulatory framework. This may be persons misleading the public in relation to their registration status and/or undertaking work that is the restricted domain of registered practitioners. Competent practitioners are encouraged to register with the Authority, to ensure their work operates within the regulatory framework and to protect consumers.

Many building offences can be prosecuted by the council in whose municipality the offence occurred, such as prosecuting illegal building work by homeowners. However, where an offence has allegedly been committed by a practitioner, the relevant MBS will usually refer the matter to us, for consideration of the most appropriate course.

The role of injunctions

What is an injunction?

An 'injunction' is a Court order that requires a party to do something, or to refrain from doing something.

The outcome from injunctions sought by the Authority differ from the role of prosecutions. For example, the outcome of a prosecution may be the imposition of a penalty on the offender (such as a fine). However, a prosecution will not result in the removal or rectification of illegal or non-compliant building work.

Injunctions can be sought to ensure appropriate remedial action takes place, or to prevent future action by a person. This may be required for various reasons, including to protect the safety of the public and/or the built environment. It may also be required to ensure the proper regulation of the building and plumbing industries, including the maintenance of applicable standards within these industries.

The Authority has the power to seek an injunction in various circumstances, including where a person has engaged (or proposes to engage) in conduct in contravention of the Act, regulations, a notice, building permit or order. We may seek an injunction at the same time as the prosecution of an offence or separately (including instances where no offence is prosecuted).

The BPC may apply for an injunction order in a variety of circumstances, such as:

• where there is non-compliance with a building order referred to us by a private building surveyor (PBS) and we consider an injunction is reasonably required to rectify the non-compliance
• to deal with concerns regarding repeat offending under the Act (whether of the same or different offences)
• remedial action is required of a builder or plumber (whether a registered or licensed practitioner or not)
• remedial action is required of an owner or an owner-builder, who has failed to comply with a notice, building order or permit.

Criteria for court action

The Authority will only pursue court action where applicable legal and public interest criteria are met:

• a prosecution may only proceed if there is a reasonable prospect of obtaining a finding of guilt (with or without conviction)
• an injunction will only be sought where the circumstances meet the criteria set out in section 234E of the Act
• for either action, the public interest will be considered.

Public interest criteria relevant to a prosecution

The following criteria are relevant to determining whether a prosecution is in the public interest when considering the circumstances of the individuals involved:

• offender related factors (such as the offender's compliance, attitude, criminal history/previous offending and background)
• victim related factors (such as the attitude of the victim to a prosecution)
• the nature and magnitude of consumer detriment arising as a result of the alleged offence, both financial and non-financial
• the age, physical or mental health, or disability of any witnesses
• any mitigating factors (which indicate lower culpability, such as a mental illness) or aggravating factors (indicating higher culpability, such as deliberately targeting a vulnerable person or refusing to take available steps to remedy the non-compliance)
• whether the consequences of the court outcome are likely to be unduly harsh or oppressive (for example, if a prosecution is likely to result in a fine that is disproportionate to the accused's culpability for the offending)
• sentencing factors (for example whether the conduct has been adequately addressed by other means including the disciplinary process).

The following public interest criteria are relevant to considering the surrounding circumstances, including the community, the regulatory scheme and the legal system:

• community protection generally, and in particular, matters relating to public safety and the safety of the built environment
• the need to maintain public confidence in the transparent and proper administration of the regulatory scheme, including its governing legislation and standards
• whether the action would be perceived as counter-productive, unreasonable or may result in a miscarriage of justice
• offence related factors (such as the seriousness of the offence, whether it is of considerable public concern or considerable consumer detriment, and the need for specific and general deterrence)
• the availability of compensation, restitution, reparation or forfeiture (following a successful prosecution)
• the likely length of a trial, if disproportionate to the seriousness of the alleged offending
• any circumstance that would prevent a fair trial.

Applying the criteria

The Authority acts in alignment with its Compliance and Enforcement Policy Framework when determining the most suitable response to non-compliance. The Authority considers some types of conduct to be more egregious, such as:

• patterns of non-compliance and misconduct
• exploitative or predatory conduct towards consumers which causes financial harm
• conduct impacting the safety of the public, industry participants and the built environment.

The Authority also considers the efficacy and suitability of a prosecution or injunction when determining whether the action is in accordance with the public interest. For example, the Authority may consider the following factors, before taking court action:

• concurrent or alternative action taken by other agencies or bodies (for example council, Consumer Affairs Victoria and WorkSafe Victoria)
• the most appropriate solution relevant to owner-builder conduct, which will depend upon the context of their past actions (the specific deterrence value of prosecution is increased where there is an ongoing construction practice)
• if alternative resolution is available and suitable, accounting for the outcomes that can be attained, the conduct of the person, and relevant public interest criteria.

In relation to registered practitioners, the Authority:

• will consider if the removal of the practitioner from the regulatory system through disciplinary action is necessary to protect the public from further harm, and is therefore a preferable course to prosecution (noting that in some cases both courses of action may be appropriate)
• may prosecute where the consequences of the contravention have not caused significant harm, but the conduct demonstrates a failure to abide by important professional or statutory obligations. For example, commencing building work with no building permit in place. We may also (or alternatively) take disciplinary action in these circumstances
• may seek an injunction to secure remedial or rectification outcomes, where feasible and to complement the measures available via disciplinary action or prosecution
• may prosecute as an initial step in addressing an offence, after which disciplinary actions such as suspension or cancellation may be taken
• will consider case factors, such as:
  • if the practitioner has shown reckless or blatant disregard for the regulatory scheme and the sanction best suited to deal with this behaviour
  • if there is a cumulative impact from offending, including a pattern of repetitive conduct that reflects an apparent business model designed to circumvent the regulatory framework
  • proportionality and efficiency to best address strategic priorities when targeting certain types of harm (such as by considering the availability of financial penalties under the disciplinary framework compared to those available via prosecution).

Irrelevant considerations

When considering public interest criteria, there are factors that will not influence the decision-making process.

These include:

• political pressure or interference
• pressure or interference from any group, association, organisation or person with a direct or indirect interest in the decision being made
• characteristics, including those protected by Victoria's discrimination laws (such as race, religion, gender identity, sexual orientation, national origin, industrial activity, political or other associations), unless directly relevant to the conduct
• the personal views of the person making the decision concerning the relevant parties
• possible impact on the Government or any other political party
• possible impact of the decision on the personal or professional circumstances of decision makers.

Conduct of court proceedings

The Authority, when acting in the role of prosecutor takes on, and will abide by, all the usual obligations of a prosecutor as described in the DPP Policy. Those obligations are relevant to the Authority’s conduct and resolution of a prosecution. There are also important obligations on an applicant for an injunction, particularly if the respondent is unrepresented.

Reconsidering a decision to prosecute

A decision to withdraw, discontinue or not proceed with a prosecution will be made in accordance with the public interest and the interests of justice generally. The following are some examples of when this may occur during a prosecution:

• significant new facts emerge
• it is shown that the decision to prosecute was made on a materially erroneous or flawed basis. A decision of this nature will be determined by having regard to the same criteria set out above relevant to commencing a prosecution.

Resolution of prosecutions

Resolution means an agreement between the prosecution and the accused that the accused will plead guilty to a particular charge(s), on the condition that the prosecution will withdraw, discontinue, or not proceed with a different charge(s). A resolution will be accepted by the Authority, if it is in the public interest to do so. In determining whether accepting a proposed resolution is in the public interest, we consider the public interest criteria set out above and paragraph 34 of the DPP Policy.

Prosecution of indictable offences

What is an indictable offence?

An 'indictable offence' is a serious criminal offence that carries significant penalties and is often heard in the higher courts. In contrast, ‘summary offences’ are generally considered to be less serious.

The Act, in section 16B, provides for two indictable offences, prohibiting a person in the business of building from:

• knowingly carrying out building work without a building permit
• knowingly carrying out non-compliant building work.

These offences may capture conduct ranging from oversight or mistake (for example, caused by poor business practices) to more reckless or deliberate behaviour.

Due to the significant consequences of a guilty finding for an indictable offence, the Authority only considers referring the prosecution of offenders for indictable offences to the DPP where the circumstances of the offending are serious. As an example, an unauthorised demolition (by intent) designed to result in a significant increase in the value of the land is highly likely to meet such circumstances. Such conduct warrants the more significant penalties, which can be imposed for indictable offences (whether in the form of greater monetary penalty or a custodial sentence) in comparison to the available penalties under the equivalent summary offences contained within the Act (at section 16).

Where such offending is perpetrated by a registered building practitioner, the indictable offence(s) may be utilised in addition to, or in conjunction with, disciplinary action.

Referring to the DPP

Indictable offences are prosecuted by the DPP. In considering whether to refer a matter to the DPP to take over the conduct of the prosecution (including the decision whether to lay indictable charges), the Authority will consider the legal and public interest criteria set out above.

With indictable offences the Authority will be effectively bound by the DPP's decision on the question of whether to prosecute or not. However, if the DPP's decision is based on a different view from the Authority as to where the public interest lies, the Authority will take a robust approach in putting forward its reasons as to why, in the circumstances of the case at hand, the public interest lies in prosecuting the offending given the regulatory framework imposed by the Act.

In exceptional circumstances a matter may be referred to the DPP for the purpose of taking over a complex prosecution of summary offences. Such complexity may arise from the number of charges involved or due to the complexity of managing the evidence. In such matters, if the DPP advises not to prosecute on public interest grounds, the Authority will carefully consider such advice. Unlike with indictable offences, the Authority would not be effectively bound by the views of the DPP in summary offences, but for its views would be properly respected and considered.

It follows that in rare cases the Authority may:

• arrive at a different view to the DPP regarding the appropriate course of action to serve the public interest in the circumstances
• decide to prosecute, despite a different view being expressed by the DPP.

Ex parte hearings

What is an ex parte hearing?

An 'ex parte hearing' is a hearing where the other party neither appears in person, nor are they represented.

The Authority will make use of an ex parte application when it is in the public interest to do so. In the context of a prosecution that public interest will arise where the accused shows, without good reason, an obvious disinclination to engage with the judicial process (for example, by not appearing) and so causing unnecessary delay. Offences under the Act are mostly summary offences and are meant to be dealt with efficiently, fairly and expeditiously.

At the first instance of the person charged failing to appear at a hearing, the Authority will foreshadow to the court that, should there be a non-appearance on the next occasion, then application will be made to proceed ex parte. The person charged will be informed of what took place when they failed to appear.

The Act expressly permits injunction applications to be made on an ex parte basis (see section 234E). In some instances, for example for reasons of public safety, it may be appropriate to seek an injunction on an ex parte basis, with no notice to the respondent.

In contrast, in prosecution matters, any injunction will be sought as part of sentencing/penalty submissions. In either scenario and whether ex parte or not, the Authority will carefully consider both the timing of any application for an injunction (noting it can be made at any time) and what notice of the application and its basis is given to all relevant persons to ensure, as far as practicable, the proper administration of justice and to facilitate a successful outcome in having the injunction granted.