Second Reading
The Hon. JOHN DELLA BOSCA (Minister for Education and Training, Minister for Industrial Relations, Minister for the Central Coast, and Minister Assisting the Minister for Finance) [7.21 p.m.], on behalf of the Hon. Michael Costa: I move:
That this bill be now read a second time.
As the second reading speech is lengthy and has already been delivered in the other place, I seek leave to have it incorporated in Hansard.
Leave granted.
The Brothels Legislation Amendment Bill 2007 will amend the Environmental Planning and Assessment Act 1979 and the Restricted Premises Act 1943 to strengthen enforcement measures to enable local councils and other authorities to more quickly and effectively take action against brothels that are operating unlawfully. Since 1995 the use of premises as a brothel has not been a criminal offence per se. Premises can be lawfully used as a brothel, but only with appropriate planning consent obtained in accordance with the Environmental Planning and Assessment Act 1979.
The requirement to obtain planning consent ensures that brothels operate only in accordance with relevant planning instruments and conditions of consent. This means that there can be close regulation and supervision by councils of the impact of a brothel on the community. However, the regulation of brothels through the planning regime depends on effective enforcement measures. It is crucial that councils are able to take swift and effective action against brothels which operate without development consent, in contravention of their conditions of consent, or where there is a demonstrated adverse impact on the community. A robust enforcement regime is particularly important where an unlawful brothel operates from premises in a zoned area where brothels should never be permitted, such as near a school.
The measures in this bill are about strengthening these enforcement measures. The bill will amend the Environmental Planning and Assessment Act and the Restricted Premises Act to overcome some of the difficulties that confront councils when they seek to obtain evidence that premises are being used as a brothel. The bill will amend the definition of "brothel" in the Restricted Premises Act 1943 and the Environmental Planning and Assessment Act 1979. The amendments will include clarification that prostitution need not be an habitual use of premises for those premises to constitute a brothel; rather, it will be sufficient for a council to demonstrate that the premises have been used for the purpose of prostitution and that the premises are likely to be used for that purpose in the future.
A new limb will also be added to the definition to mean that premises that are being advertised or represented as being used for the purpose of prostitution and are likely to be used for that purpose will be taken to be a brothel. The bill will also introduce new provisions to make it absolutely clear that in proceedings relating to unlawful or disorderly brothels, courts will be entitled to rely solely on circumstantial evidence. In particular, the bill will insert new provisions to provide that a court may make a finding that premises are being used as a brothel without any direct evidence of prostitution. These amendments will assist in overcoming the complications faced by councils in identifying and gathering evidence to prove the unlawful use of premises as a brothel— A new limb will also be added to the definition to mean that premises that are being advertised or represented as being used for the purpose of prostitution and are likely to be used for that purpose will be taken to be a brothel. The bill will also introduce new provisions to make it absolutely clear that in proceedings relating to unlawful or disorderly brothels, courts will be entitled to rely solely on circumstantial evidence. In particular, the bill will insert new provisions to provide that a court may make a finding that premises are being used as a brothel without any direct evidence of prostitution. These amendments will assist in overcoming the complications faced by councils in identifying and gathering evidence to prove the unlawful use of premises as a brothel—complications that have been exploited successfully by some operators.
The bill will also introduce tough enforcement powers against unlawful brothels. The bill provides that orders given by a council to close a brothel operating unlawfully under the Environmental Planning and Assessment Act will be able to be served on any person involved in the management of the premises, and not solely on the owner or occupier. Non-compliance with such an order will be an offence and penalties will apply. Penalties will also be increased for repeat offenders.
Under the bill a council order against an unlawful brothel will also be able to be used to prohibit the use of the premises for specified related sex uses. This is intended to address the problem where an unlawful brothel is ordered to shut down but is immediately transformed into some other related and unauthorised business, such as a massage parlour. The new provisions will mean that the council will be able to take immediate and effective action without having to start the process over again. The bill will enable the brothel closure orders to be made effective within five working days. The bill will also limit the ability of the courts to adjourn enforcement proceedings brought by a council against an unlawful brothel. This means that unlawful brothel operators will no longer be able to continue operating indefinitely while they go through the motions of applying for development consent.
The bill also will enable a council to apply to a court for an order to cut-off the supply of water, gas and electricity to premises as a last resort when a brothel operator persistently flouts the law. Of course the bill includes safeguards to ensure that such a utilities order does not adversely affect third parties or residential properties. It is also intended to bring forward a regulation to allow the Local Court, as well as the Land and Environment Court, to hear appeals in respect of brothel closure orders. This is being proposed with a view to achieving faster access to the courts and more speedy resolution of disputes.
The bill also strengthens the measures available to councils to close down disorderly brothels under the Restricted Premises Act. That Act enables councils to apply for an order from the Land and Environment Court to close down a brothel that is having an adverse effect on the neighbourhood. That Act complements the enforcement regime under the Environmental Planning and Assessment Act. This bill will strengthen the powers under that Act in a number of ways, including expansion of the definition of brothel and clarifying the ability of the court to rely on circumstantial evidence.
The bill will also clarify the circumstances in which a council can apply for a closure order under the Restricted Premises Act. The bill expands the classes of persons from whom complaints can be received so that councils will also be able to take into account complaints received from people who, or whose children, regularly use facilities in the neighbourhood. Amendments will also ensure that closure orders made under the Restricted Premises Act cannot be circumvented. When making an order, the court will be given the power to suspend for up to six months a development consent that applies to the premises. The amendment will enable the court to crack down on any attempt to evade a closure order by reopening a brothel in the name of another person or company relying upon a pre-existing development consent.
The court will also be able to extend a closure order to other specified related sex uses. Again the purpose of this provision is to deal with the problem of a brothel that is ordered to close down but then reopens as a massage parlour or the like. Another reform introduced by this bill is to extend to other authorised planning and regulatory agencies the powers of local councils to tackle unlawful brothels. The Brothels Legislation Amendment Bill will introduce a tough new regime that targets unlawful brothel operators, especially repeat offenders and those who seek to circumvent the law. I commend the bill to the House.
The Hon. DON HARWIN [7.21 p.m.]: It is 12 years since the Disorderly Houses Amendment Act 1995 made the regulation of brothels in our community an issue of local government planning rather than one of morality or criminal law. Reflecting broader community recognition that the presence of a sex industry in our society is inevitable, it is appropriate for the Parliament to prescribe a workable legal framework that protects both the interests of the wider community and the rights of sex workers. It is desirable for the sex industry to be subject to regulations requiring brothels to operate with development consent from local government and appropriate safeguards for workers and clients. Such regulation is good public policy and the industry should remain the object of planning legislation.
The operation of illegal brothels, however, remains a major concern. Brothels that operate without consent also operate outside the regulatory safeguards that protect workers, clients, and the interests of the general community. Illegal brothels are frequently sites of serious antisocial and criminal behaviour. Sex workers in illegal brothels are often exploited and are the victims of violence. The problem of illegal migrants being virtually enslaved by unscrupulous operators using the threat of arrest and deportation has been raised in legislative debate in the past. Such situations are not tolerable.
Male and female sex workers who choose to work in clean, well-ordered and legal venues have a right to a safe workplace and to the protection of the law. It is also in the community's broad health interest that safe sex practices are observed between workers and clients, in prescribed venues that meet basic regulatory standards. Our State is recognised as a world leader in the prevention of sexually transmissible infections in the sex industry, and the regulation and oversight of legal brothels have been any important ingredient in our success.
For many communities, illegal brothels are a serious concern; indeed, in some instances they pose a very real danger. Local government, however, has struggled for many years to combat the issue of brothels operating without consent. Councils have repeatedly pointed to the inadequacies of the existing legislation, but the Government has failed to act. Worse still, the Government has blocked several Coalition attempts to address problems in the legislation. Assertions by Government members on occasions that the legislation in its current form gives councils adequate powers with regard to the closure of illegal brothels have been shown to be unfounded by the presentation of the bill.
As the Coalition has been saying for many years now, the current legislation does not give council enough power to shut down illegal brothels quickly and effectively. The burden on local government, in terms of both proof and cost, is often substantial and onerous. I was recently briefed by Councillor Sally Betts, Leader of the Liberal team on Waverley Council, about the tremendously difficult and expensive experience that that council had with brothels operating illegally in a multi-unit development in Newland Street, Bondi Junction. In a mixed-use building that mainly contained strata residential units, three different brothels operated illegally. The largest, known as Misty's, owned more than 14 separate units. The council spent in excess of $200,000 in legal fees over more than 12 months to shut down these operations. In addition, the council had to pay private investigators to obtain proof that the establishments were indeed trading as brothels. The illegal businesses delayed court action by submitting development applications, and throughout the lengthy legal proceedings each continued to operate. While the cases were before the courts, council was unable to prevent the brothels' activity despite the enormous negative impact on the other residents in the block.
Several times in the past six years the Coalition has proposed simplifying the process of closing down illegal brothels. We have repeatedly advocated making it easier for local government to take action. In 2001, for example, the former member for Pittwater, John Brogden, introduced a bill that proposed tough powers for councils to close down illegal brothels within 48 hours. The bill reversed the onus of proof such that an alleged operator of an alleged illegal brothel would be required to prove either that it was not providing sexual activities for money or that it was doing so with the required legal authority. The Government defeated that legislation. In the intervening years the Government has failed to take action and has blocked further Coalition attempts to reform the Act.
The Government's refusal to address the shortcomings of the legislation has allowed illegal brothels to flourish and has resulted in councils incurring substantial legal costs. These outcomes could have been avoided if the Government had supported Coalition reforms in the past or had moved promptly to legislate its own solution. As is so often the case with this Government, after years of delay and inaction we have now been presented with hurriedly drafted legislation that is being forced through the Parliament with undue and unseemly haste. There has been insufficient opportunity to adequately discuss the legislation with the Local Government Association, representatives of the sex industry, health professionals or the broader community. As always when legislation is rushed through with insufficient consultation and reflection, there are concerns about unintended consequences of the changes having a negative impact on stakeholders.
The legislation is not as comprehensive as the reforms proposed by the Coalition some years ago. It does not shift the burden of proof from councils to the alleged operators of alleged illegal brothels. Instead, the main thrust of the bill is to allow councils to rely on circumstantial evidence as the basis for issuing an order for closure. In line with this change, it also enables the Land and Environment Court to rely on circumstantial evidence. Subsection (5) of 124AB states:
In any proceedings:
(a) the Court may rely on circumstantial evidence to find that particular premises are used as a brothel, and
(b) the Court may make such a finding without any direct evidence that the particular premises are used as a brothel.
Under this lesser standard of proof the Land and Environment Court will need to determine whether certain evidence is sufficient to verify that the relevant premises are being used illegally as a sex-for-payment venue. The bill outlines some examples of circumstantial evidence that could be presented in such cases. They include: evidence related to persons entering and leaving the premises, including number, gender and frequency, that is consistent with the use of the premises for prostitution; evidence of appointments with persons at the premises for the purpose of prostitution that are made through the use of telephone numbers or other contact details that are publicly advertised; evidence of information in books and accounts that is consistent with the use of the premises for prostitution; and evidence of the arrangement of, or other matters relating to, the premises, or the furniture, equipment or articles in the premises, that is consistent with the use of the premises for prostitution.
This incremental change to the legislation reduces the burden of proof that councils will need to present in action forcing the closure of illegal brothels. The onus, however, remains with councils to accumulate evidence. The current practice of council officers or private investigators observing and attending premises will remain a part of the process. Local governments will continue to be subject to legal costs associated with contested cases. Councils will, however, benefit from new limits on adjournments in the Land and Environment Court provided in this bill. Often legal proceedings to force the closure of illegal brothels are dragged out because operators submit retrospective development applications. The bill provides that:
The Court may not adjourn proceedings under section 124 (3) unless it is of the opinion the adjournment is justified because of the exceptional circumstances of the case ? The fact that it is intended to lodge a development application, or that a development application has been made, is not by itself an exceptional circumstance.
This aspect of the bill will enable council action in the courts to be expedited, presumably with reduced cost and a faster resolution for the community. Honourable members may have read correspondence about this bill from concerned health groups such as the AIDS Council of New South Wales [ACON], and sex industry representatives and advocacy bodies such as the Sex Workers Outreach Program [SWOP] and the Scarlet Alliance. These groups have noted that the proposed reforms appear to have been drafted with regard to council action against large commercial operations rather than the single home-based sex workers in home occupation brothels. Despite appearing to recognise the distinction in the legislation—in the section relating to utilities orders, for example—these groups are concerned that the changes will impact adversely on individually operating home-based sex workers whose presence is usually discreet and whose impact is relatively less intrusive. Such operators are often unnoticed by their community.
As a result of this legislation it almost certainly will be easier to shut down home occupation brothels that do not have development approval, just as it will be possible to close down all brothels that operate without the required local government consent. However, it should also be noted that this bill will not alter the ability of councils to permit or reject home occupation brothels. Local councils, which are elected by residents, must have the right to define the character of the suburbs and towns in their area through the determination and regulation of land uses. This includes where brothels will operate.
The new member for Pittwater, Rob Stokes, in his thoughtful contribution to the debate in the other place, drew attention to the fact that since the legalisation of sex services premises in 1995 the New South Wales Government has offered very little guidance to local councils as to how best to use their planning powers regarding such premises. Although a sex industry policy document recommending best practice models was promised, the Government has failed to deliver such a document. Guidelines were drafted by the Sex Services Premises Planning Advisory Panel in 2004, but these were not government policy, as the then Minister for Planning stated in an answer to a question on notice last year. The Scarlet Alliance has stated:
Councils have not yet been given the appropriate resources or education to implement the laws.
Clearly, Mr Stokes's point is well made. Both councils and the sex industry would benefit from better State Government leadership in this area. The bill will make it easier for local government to address non-compliance with planning requirements in regard to sex services premises. The Opposition will not oppose the bill. However, it notes that the legislation could go further. The Government could be giving councils and stakeholders better guidance, and a better opportunity for consultation would have benefited both the debate and the legislative outcome.
The PRESIDENT: Order! Before giving Ms Sylvia Hale the call, I inform members that I have been advised by Ms Sylvia Hale that she has difficulty speaking. She has indicated that she will endeavour to give her speech. However, I have concurred in her request that should her voice give out she may hand over her speech to another member to complete. There being no objection to that course, the member may proceed.
Ms SYLVIA HALE [7.33 p.m.]: The Greens are very concerned about the Brothels Legislation Amendment Bill, which we believe to be inherently retrogressive. It has a number of, perhaps unintended, consequences such as negative impacts on public health, increased opportunities for corruption of local council officers, victimisation of sex workers who work from home, a cementing of council policies that undermine the intention of the Disorderly Houses Amendment Act 1995, a recriminalisation of brothels and the delivery of an unfair competitive advantage to the operators of large, commercial brothels. I will deal with each of these considerations in turn.
This bill has the potential to impact negatively on public health as well the capacity of sexual health service providers to deliver services to the sex workers in New South Wales. Any changes to the way that councils regulate the sex industry have the potential to influence, either positively or negatively, the health of sex workers, their clients and the broader community. New South Wales is recognised as a world leader in the prevention of sexually transmissible infections in the sex industry. There has not been a recorded case of transmission of HIV in a New South Wales sex industry setting. This is due in large part to the work of the Sex Workers Outreach Project [SWOP], which is a non-government service established in 1990 and funded by NSW Health. The primary purpose of the Sex Workers Outreach Project is the promotion of the health, safety and wellbeing of sex industry workers in New South Wales. Services are delivered within a framework of health promotion, harm reduction and occupational health and safety for the sex industry. The Sex Workers Outreach Project has a high level of access to all sectors of the New South Wales sex industry and makes no distinction in delivering services to workplaces, whether authorised, unauthorised or illegal.
The ability of the Sex Workers Outreach Project to deliver vital sexual health services to sex workers and their clients can be jeopardised by poor planning decisions that force sex services underground. Sex workers and businesses are highly mobile. Some premises have moved also to escort or "out call" services where no sex workers or clients are on site, making it extremely difficult for the Sex Workers Outreach Project to deliver services to them. The New South Wales Government has implemented occupational health and safety programs aimed at the indoor sex industry through WorkCover New South Wales. Health education programs continue to be delivered by the Sex Workers Outreach Project and the sexual health services. When sex workers' workplaces are difficult to identify or locate, or when sex workers are dispersed outdoors, service delivery becomes more complex and health outcomes are compromised. In particular, the proposed measures that would allow essential utilities such as water, gas and electricity to be cut are intolerable on the grounds of public safety and occupational health and safety. Yet that is what is proposed in the bill.
In the mid-1990s, just prior to decriminalisation, Newcastle police cracked down on brothels, creating an immediate increase in street sex work. When sex workers' workplaces are closed they continue to work, but in less supported or less safe environments. The health and safety of street-based sex workers and their clients is significantly compromised in comparison with indoor-based sex workers. As up to 85 per cent of the New South Wales sex industry remains unable to be authorised and is possibly illegal, depending on the council's local environment plan, the AIDS Council of New South Wales, the Sex Workers Outreach Project, the Scarlet Alliance and the Australian Sex Workers Association are concerned that the proposed laws will simply push the sex industry underground and into new, less recognisable forms, with a consequent reduction in the ability to deliver appropriate services. Of particular concern in this regard is the provision in the bill that permits the issuing of orders to cut electricity, gas and water supplies to illegal brothels. This would pose serious public health and occupational health and safety issues for sex workers, their clients and others.
Sex workers are the priority population in the New South Wales Government's HIV-AIDS strategy and its sexually transmissible infections strategy. The Sex Workers Outreach Project shares a lead agency role with NSW Health to monitor the impact of legislation and local government policy on sex workers. Since decriminalisation of brothels, extensive monitoring and consultation processes relating to sex industry regulation have been resourced by the New South Wales Government, including the Intergovernmental Brothels Task Force, which reported in 2001, and the Sex Services Premises Planning Advisory Panel that was in force from 2002 until 2005.
NSW Health was represented on both those advisory bodies, and the Local Government and Shires Associations and local councils were represented on the planning advisory panel, which was administered by the Department of Infrastructure, Planning and Natural Resources. The reports found significant areas of concern and made a number of recommendations to the New South Wales Government. Among these were recommendations to provide guidance to councils on best practice implementation of planning policies so that the health and safety of sex workers was upheld and the effectiveness of the 1995 reforms could be maximised. In particular, it was noted that the inability of legal brothels to be established due to poor planning regulations was undesirable.
Due in part to inappropriate local council planning policies, less than 15 per cent, that is 125, of the approximately 850 sex services premises to which the Sex Workers Outreach Project provides services have development consent. So 85 per cent of the industry lacks development approval. With the majority of premises remaining unauthorised or illegal, it appears that the majority of councils have not adopted reasonable planning controls. Indeed, many authorised brothels were initially refused consent by councils and had to go through costly appeals against councils' decisions in order to gain consent at the Land and Environment Court. The difficulty in gaining council approval has discouraged other operators from even applying for approval.
The requirement that an application for development approval be advertised has resulted in a moral panic where brothels that have been operating discreetly for many years are suddenly subject to public attention and to campaigns whose sole purpose is to prevent them from being approved. When I was on Marrickville council an application came in for a brothel that had been operating for years without anybody's knowledge. It was actually very close to where I lived and I did not know that it was operating, yet there was an outcry, "Goodness gracious, how could this exist?" Because council did not decide on the application in time it went to the Land and Environment Court and the court granted the application. When establishments are clearly operating in a way that does not affect the amenity or the safety of the local community in any way—when they are well-run institutions—it is not desirable that they should be so discouraged from applying for council approval.
The proposed legislative changes in the bill are clearly directed at commercial-scale premises. It is clear that the changes will also impact on the 4,000 individual private sex workers in New South Wales and their homes. The definition in the bill of a brothel should be amended to ensure that these workers are not inadvertently caught by its provisions. In fact, I will move an amendment to that effect. The debate on the Disorderly Houses Amendment Act in 1995 indicates that sex service premises in residential areas were not intended to be the subject of council powers or regulations. It also indicates that sex services premises in residential areas were to be tolerated unless they caused adverse amenity impacts. However, home occupation sex services fall within the definition of a brothel and so become the subject of these proposed measures.
With only a few exceptions councils have prepared their local environmental plans and their development control plans with only commercial-scale brothels in mind. It follows then that brothels are generally not permissible and, therefore, illegal in residential areas. Home occupation sex services premises are then unable to be authorised and are technically illegal, despite their low amenity impact and their discreet conduct. Local councils do not receive complaints about private sex workers amenity impacts. These businesses, by their very nature, are discreet and cannot afford to be known widely as a brothel if they wish to keep their clients. It is the very discretion of their operation that attracts many of their clients. For this reason they operate with low or no amenity impacts and, in general, their neighbours do not know the nature of their business or, if they do, they generally have no objections.
A number of councils have targeted home occupation sex services for routine compliance actions, actions that are not based on complaints about impacts on amenity. The Sex Workers Outreach Project collects information relating to council compliance actions. Compliance officers have targeted home occupations for closure without complaint in at least four council areas. Where councils use this approach the risk of corruption increases rapidly. There are opportunities then for individual officers to become corrupted in carrying out their duties, involving either commercial brothel operators or implicating the private workers themselves. Counsel assisting the Independent Commission Against Corruption inquiry unto Operation Pelion, which is currently investigating alleged corrupt practices by a compliance officer of Parramatta City Council, made some relevant observations in this regard on 14 May this year. He said:
Most of the history of New South Wales brothels have been illegal, and prostitution has been an unlawful activity. In the past, operating relatively clandestinely and mostly in cash, the continued operation of brothels has always depended on the authorities, whether it be the police or local authorities failing to take action to investigate or prosecute.
That inaction has no doubt frequently been the result of those engaging in the unlawful provision of sexual services being able to provide ongoing bribes to those charged with enforcement of the law and the preparedness of the corrupt to accept those bribes or to extort payment where not offered to protect the activity. The corruption of individual public officers in this area has no doubt been a significant factor in their corruption in other areas to the more general harm of the community.
Being paid to turn a blind eye to the operation of a brothel can readily be extended to ignoring sexual servitude or the use or sale of prohibited drugs on those premises. Those who are prepared to engage in one criminal activity are frequently prepared to engage in other criminal activities. The past acceptances of bribes or engagement in extortion provides a powerful lever. In recent times the community has taken a more enlightened and reasonable view of the sexual service industry. The provision of sexual services and the use of premises for brothels are now permitted within the limits of legislative acceptance and compliance with any conditions of consent.
The brothel industry has now largely fallen within the control of local councils which are able to consent to development applications for the use of premises as brothels, providing that the application meets any local environment plan such as to location or any other relevant factor such as parking provisions, noise or operating hours, to name but some. Approval is only matter of time, money, and overcoming any local objection.
It is highly probable that these changes have led to the significant diminishing or removal of what has been, while the activity was illegal, a major cause of corruption within the police service.
However, it is clear that the provision of sexual services from unapproved premises has continued and is also provided at premises approved only for the provision of genuine massage.
The detection and prevention of such operations now lies almost entirely in the hands of local councils, and there are probably few, if any, which do not have ongoing difficulties in this regard. Brothels do not always want to operate in areas, such as industrial zones, where local councils may grant approval or to meet the capital investment necessary to gain approval because such areas are not where the potential clients are or the investment required is too great.
Counsel for the Independent Commission Against Corruption has clearly indicated the appalling impacts if we seek to prevent brothels being authorised, provided they comply with reasonable conditions. The Independent Commission Against Corruption investigated allegations that a Parramatta City Council officer received bribes, sexual favours and money in return for not policing council's policy. The negative attitudes of many councils in regard to various scales and types of sex services premises and their operators has greatly contributed to enabling an environment that is conducive to corrupt conduct by council staff and other persons. This premise is evidenced by consecutive, prohibitive and overly restrictive zoning provisions and development standards within most local environment plans drafted since 1995.
For example, sex services premises in the Parramatta City Council local government area are currently regulated under the Parramatta Local Environment Plan 2001 as amended. Home-based sex workers premises and commercial sex services premises are collectively defined as brothels. All brothels are prohibited in residential zones, and other prohibitive locational and development restrictions apply within limited commercial zones. It is effectively impossible in Parramatta to gain authorisation to either conduct a home-based sex service or establish a commercial brothel. It is no wonder that Parramatta is the subject of the investigation by the Independent Commission Against Corruption. The New South Wales Ministerial Taskforce on Brothels, which delivered its final report in 2001, clearly identified that policies that do not allow home-based sex workers to operate in residential zones forces this sector of the sex industry to operate illegally. This leaves them:
? vulnerable to corrupt conduct by council officers (as they were vulnerable to corrupt conduct by police before the Disorderly Houses Amendment Act), and illegal operators are less likely to access occupational health and safety programs.
This was one of the unintended but, I suggest, eminently foreseeable results of this bill. One of the recommendations of the Ministerial Taskforce on Brothels was the establishment of the New South Wales Sex Service Premises Planning Advisory Panel in 2002. The panel was given the task of assisting local government to create better practice planning policies for the regulation of all scales and types of sex services premises. In December 2004 the panel finally delivered comprehensively researched planning guidelines to the Minister for Planning for publication and distribution to all local councils in New South Wales to assist them to make informed decisions when creating policies for sex services premises.
It is unfortunate that although the report and guidelines were released in 2004, it is only in the past few months that they have been made publicly available. The department kept them hidden, and it has been almost impossible to find a copy of them, let alone for councils to use the guidelines to make informed decisions. I suggest this is the reason for many of the ill-informed decisions that many councils have made. The guidelines recommend that the best way to reduce the number of illegal sex services premises within a local government area is to create planning policies "that enable operators to conduct well-run premises within a reasonable choice of localities" and to advise that this approach "is widely accepted by the New South Wales Government and was recommended in the report of the Brothels Task Force in 2001". From this bill one would not believe that the approach was widely accepted by the Government.
The current Parramatta policy regime has the effect of prohibiting home-based sex work. This leaves home-based sex workers unnecessarily vulnerable to the sorts of corrupt conduct demonstrated by its compliance officer. Other sectors of the sex industry also report difficulties in meeting the onerous locational and development standards within the Parramatta policy framework, leading many of them to operate underground. Like private sex workers, many home-based sex workers become highly vulnerable to corrupt conduct by council officers, people posing as council officers, and others who may become aware of their unauthorised activities.
The policies of Parramatta City Council have also increased the likelihood of commercial sex services premises masquerading as other businesses in order to gain development consent. Obtaining an authorised status under false pretences does not provide sex services premises operators with any protection against the corrupt conduct of council staff. When private workers are closed down by council, they lose contact with their peers and do not benefit from the safe sex education provided by more experienced workers. It also has the potential to rupture the extensive, yet fragile, network of support that exists between private workers and that contributes to their excellent health record in New South Wales.
The Brothels Task Force suggested a solution to allow home occupation sex work without consent across the State, through an amendment to State environmental planning policy No. 4. Such a solution removes the political hot potato of home occupation from the local government arena, whilst providing an equitable, and already tolerable, outcome for the whole community. Despite this advice provided to Government, the standard instrument, local environmental plan 2006, does not treat home occupations involving sex services equitably in that it provides only a voluntary option to include sex services—home occupation—and it applies a cap of two residents. As councils adopt the standard template, this may remove existing equality, and legality, for sex services—home occupation—in a range of local government areas where they are currently regulated equally to other home occupations, such as graphic designers, solicitors, or accountants. This is within a context, of course, in which the virtues of working at home are being extolled by so many people.
Removing sex services—home occupation—from the compulsory definitions and matrix table in the standard instrument local environmental plans means that they become an illegal land use. This brings the potential for negative health and safety impacts. In addition, such a ban serves no practical purpose in planning controls, as there is no evidence base of amenity impacts upon which to base a prohibition. Government policy enacted through the standard instrument local environmental plans now inherently supports a bias towards commercial sex services premises as they are a compulsory definition. This, in effect, limits legal workplace options for sex workers, forcing many of them into bigger brothels or out to escort or street work if they wish to work legally. I suggest that this gives an unfair advantage to the very large commercial operators. Sex workers would have fewer choices and less control of their workplace by way of the sexual services offered and the volume of hours and type of work they undertake.
Their options could be restricted if they were forced to work for other people. It is simply unfair and unreasonable to discriminate against individuals in this manner. We know that private sex workers are incredibly discreet, with very few clients. They do not cause adverse amenity impacts even though they operate throughout the State.
The bill contains a strong anti-competitive component. If it is passed, it will be possible for the operator of a commercial brothel simply to pick up the telephone, lodge a complaint with the council and have a private sex worker put out of business. Private sex workers will not want to expose themselves to the processes of appealing the order in court, so they will simply close and move. The loss of natural justice is a human rights abuse that should not be tolerated in New South Wales. It is totally discriminatory and wrong in principle.
If the bill is passed, numbers of sex workers will be forced to relocate constantly. They will be denied social inclusion due to fear and discrimination. Such individuals were never the problem yet they will bear the brunt of the impact of this bill. In addition, women in New South Wales should also see the possible implications of the bill, as any sexually active person may be the target of a single complaint that triggers an order requiring them to defend their lifestyle, reputation and home in the Local Court. The bill's provisions could be used in a very malicious manner. The definition of "brothel" in the bill should be amended so that home occupation sex services are not included. This would fulfil the intentions of the Disorderly Houses Amendment Act 1995. It is essential that the Government ensure that councils receive guidance and support so that they may play their regulatory role in an appropriate, non-discriminatory manner.
I turn now to the provision in the bill that makes owning or operating an illegal brothel a criminal offence. This provision undermines the decriminalisation principal that is embodied in the Disorderly Houses Amendment Act. Unlike every other State in Australia and most countries in the world, New South Wales has regulated the sex industry through a raft of measures that treat the industry like any other business. As a result, compliance is high when regulation is appropriate and lower when councils fail to make responsible and appropriate planning policies. To date, health and safety outcomes indicate that decriminalisation has been highly successful. To recriminalise an industry that has endured an inappropriate regulatory response is unjust and may reverse the gains made for sex workers in New South Wales. No other lawful business operator is subject to criminal sanctions for being in breach of council planning regulations. I emphasise that latter point for the benefit of Opposition members.
The Greens have grave concerns about the impact of criminalisation on individuals, particularly individual sex workers, who could be charged under the proposed law. New South Wales does not protect sex workers under antidiscrimination legislation, so exposure through criminal proceedings for operating a brothel may result in serious social, economic and health impacts for an individual. In addition, the removal of natural justice principles in court proceedings is completely at odds with a range of recommendations made in relation to HIV-AIDS and the law in Australia. The principle of natural justice should apply to anyone charged with a criminal offence. Removing this procedural requirement may, at minimum, enable unscrupulous so-called "illegal" operators to pick off any competition and, at worst, lead to a witch-hunt against sex workers by the wider community. This is at odds with the pragmatic, evidence-based approach taken on this issue to date and is clearly at odds with the whole notion of decriminalising the sex industry, which is the backdrop against which these legislative amendments are occurring.
The prohibition on private sex workers throughout local government areas has led to the inevitable and predictable outcome of considerable non-compliance by the local sex industry, which has opened the floodgates to corruption—as evidenced by the recent Independent Commission Against Corruption inquiry into the misconduct of a council compliance officer. By failing to fulfil its responsibility to create sensible, appropriate and workable planning regulations for the local sex industry, Parramatta City Council appears to have created an environment that is right for corruption.
The final report of the Sex Services Premises Planning Advisory Panel to the Minister for Planning included advice to assist in implementing the guidelines. Although 2½ years have passed since that advice was delivered to the Minister, there is little evidence that the Minister has acted upon it. However, the following five recommendations remain particularly relevant to the problem of private workers being classified as illegal brothel workers. The recommendations are as follows. First, the Minister for Planning should seek to amend the definition of a brothel in the State Restricted Premises Act 1943 to differentiate between commercial and home-based sex services premises. Second, the Government should develop a statewide policy to treat all home occupations equitably on the basis of amenity impacts. Third, the definitions from the guidelines should be included in the standard local environmental plan template. Fourth, the Minister for Planning should establish a small panel to assist and/or advise councils in applying the guidelines. Fifth, resources should be made available to enable training workshops for councils. I foreshadow that the Greens will move a number of amendments to the bill in Committee. However, the bill is inherently flawed and may have consequences that were not considered during its drafting. Parliament will be taking an extraordinarily backward step if it decides to pass the bill.
The Hon. MARIE FICARRA [8.06 p.m.]: The purpose of the Brothels Legislation Amendment Bill is to enact amendments to the Environmental Planning and Assessment Act 1979 and the Restricted Premises Act 1943 to implement measures for the more effective closure of illegal brothels. The Disorderly Houses Act 1995 made it illegal to operate a brothel in New South Wales unless development consent had first been obtained from the respective local council. This moved planning control from the State Government to councils, and a number of deficiencies became evident, including councils having difficulty distinguishing between escort agencies and brothels. These difficulties forced council officers to hire private detectives to disguise themselves as clients in order to get proof of the true nature of the illegal business being conducted on the premises.
In November 2001 the Brothel Review Task Force report identified a number of issues of concern regarding the practice of local councils restricting brothels to industrial areas: it compromised the safety of sex workers; most small illegal brothels with one or two prostitutes locate mainly in residential areas; and some councils do not have industrial or commercial areas for brothels to locate in. The task force found that the continuation of illegal brothels and the inability of legal brothels to be established was undesirable because it may encourage street sex work, the amenity impacts are not controlled through development consent provisions, illegal operators are vulnerable to corrupt conduct by council officials—that has been mentioned tonight; and, prior to the 1995 reforms, it would have been police officers—and illegal operators are less likely to access occupational health and safety programs.
Despite having development control plans in place that avoid schools, churches and family homes, councils still cannot control the location of brothels when the operators defy the rules. Under the current system, applicants can still use State environmental planning policy No. 1 to avoid council's planning decisions, with ongoing court costs to ratepayers. There are dangers under the current system of exploitation of sex workers in these illegal brothels especially concerning underage prostitutes, street prostitution and illegal migrants.
This bill will assist local councils to prove the existence of an illegal brothel. It enables councils to use circumstantial evidence. It will facilitate the capacity of the Land and Environment Court to make orders to shut down brothels or impede their operation via orders to shut down gas, electricity and water, achieving the same end result. Council orders to close illegal brothels would be effective within five working days. This bill will widen the definition of "brothel" in both Acts from a premise used for the purposes of prostitution to include premises advertised for prostitution. Loopholes by which an illegal brothel owner could avoid prosecution by selling or transferring a lease would also be closed. The loopholes in the current legislation, which was introduced by the Labor Party in 1995, have been creating problems for local councils. This bill will now target those illegal operators who look for ways to avoid prosecution or closure of their operations. A new offence is created for failing to comply with an order to close down an illegal brothel and financial penalties will be increased for repeat offenders. Court procedures will be streamlined so that local councils and residents can trigger swifter action when an illegal brothel is detected.
I have been a councillor, mayor and deputy mayor of Hurstville City Council for 16 years and I have served on the Australian Local Government Women's Association for many years as its president and now life member. I can attest to the anger of councils in representing their powerless residents whilst fighting losing battles against shady brothel operators who would rent out units and homes in false names and set up "massage parlours", pull up stumps once complaints mounted, only to move elsewhere and start up all over again. We need to give families back their neighbourhoods. Mothers should feel safe about allowing their children to play outdoors in their neighbourhood. Mothers should not be anxious about their children seeing illegal trading occurring next door or in a suburban block of units.
The bill will restore some control to the owners of strata title properties as to what goes on in their buildings when persons try to operate an illegal brothel out of one of the units in their block. The bill will restore control to councils over what goes on in their area, without costing ratepayers a bundle in legal costs due to councils being forced into many months of litigation under present laws to prove that a brothel is illegal and not an escort agency. The bill will give some protection to young women and men who can be vulnerable to unscrupulous illegal brothel operators offering homeless young persons a roof over their heads at an enormous human cost.
The Coalition has long argued the necessity to improve legislative capacity to close illegal brothels. Residents affected by such illegal brothels have been most concerned about the adverse impact of these illegal operations on the amenity of their neighbourhoods, particularly from the point of view of increased risk of higher crime rates. Previously the Coalition has presented similar bills to the one before us today. In 2001 John Brogden introduced the Community Protection (Illegal Brothels) Bill and in 2003 Peta Seaton introduced the Community Protection (Closure of Illegal Brothels) Bill. However, in the past this Government repeatedly voted against all Coalition efforts to strengthen laws to close down illegal brothels. This Labor Government has previously rejected all attempts to close the loopholes. The Government voted against the current Speaker of the other place, Richard Torbay, when he introduced his private member's bill in 2001. It was very similar to the one before us today. It is ironic that this Government, after 12 years of resistance, has finally woken up to community concerns and taken action. Although it is 12 years too late, we are happy it is here.
Local councils' capacity to rely on circumstantial evidence will lessen the reliance that councils have had in the past of paying private investigators to go into premises suspected to be operating as brothels and gather evidence—such as having sexual intercourse with prostitutes—to give in court of the brothel's existence. The reliance on circumstantial evidence will now facilitate prosecutions and court orders to shut premises and/or shut off utilities. Such measures will reduce unnecessary costs for local councils associated with their past reliance on private investigators and the costs associated with prolonged or failed court proceedings.
The New South Wales Government has in the past introduced reforms under the Disorderly Houses Amendment Act 1995 to uphold the health and safety of sex workers and their clients and to reduce potential corruption in the control of prostitution. Sex workers have had their rights strengthened under the occupational health and safety laws to ensure a safe and legal workplace. Legislators have been responsible for protecting the rights of these users and employees of brothels in New South Wales. It is now time to protect residents and local environments adversely affected by illegal brothels. Many hundreds of premises are operating under the cover of the law and the required local government controls.
Sex service premises have been decriminalised and have been able to operate as legitimate businesses in New South Wales for 12 years. They exist in almost all local government areas in New South Wales. It is estimated that around 750 brothels are known to authorities across New South Wales. However, only approximately 125 of these premises have development consent, with the majority of brothels remaining unauthorised or illegal. Councils have had a difficult time in regulating these illegal brothels. In a lot of instances the operators of such brothels keep on the move, using rental accommodation to keep a step ahead of council inspectors and police officers.
Brothels are a reality and have been throughout history. The best way to ensure they operate correctly is to regulate them under ever-improving New South Wales legislation and to enable local councils to do their job properly. The bill will give the much-needed powers to councils. The Local Government Association and many individual councils have been lobbying for such changes for many years, both before and after legislation was introduced in 1995. The New South Wales sex industry is regulated by local councils via planning and health controls, WorkCover New South Wales for occupational health and safety aspects, and NSW Health for the public health management of employees and clients. The report of the Brothels Task Force in 2001 noted:
The reforms allow brothels to be regulated in much the same way as any other business. This enables proper control over their impact on communities, through locational and management requirements, as well as enhancing proper health and safety practices.
These reforms came about because it was well recognised that prohibition drives brothels underground, making it impossible to regulate their location, ensure health and safety standards, and provide a rational response to community concerns. When brothels operate illegally it makes implementing effective HIV and other sexually transmitted disease prevention strategies and ensuring health and safety standards very difficult. Despite the myths about decimalisation, the number of brothels and the effective regulation of the sex industry have not changed substantially since decriminalisation. There remain issues of concern with regard to the control of prostitution in this State?namely, street prostitution and sex slavery involving illegal immigrants. These issues need further attention as police enforcement alone has not solved the problem. A broad range of cooperative measures are needed.
The bill, as has been the case with the Coalition private members' bills that were debated and rejected by this Government in 2001 and 2003, will restore powers to local councils to more effectively and swiftly close down illegal brothels in New South Wales. It will help to minimise the legal costs to ratepayers associated with such necessary action. It will do much to restore neighbourhood security for families. It will lessen the adverse impact on local amenities and property values by the operation of illegal brothels in this State. The Coalition does not oppose the bill.
Reverend the Hon. FRED NILE [8.18 p.m.]: The Christian Democratic Party is pleased to support the Brothels Legislation Amendment Bill 2007. I congratulate the Government on introducing this bill to fill the holes that occurred in the original Disorderly Houses Act of 1995, which was badly drafted and has caused many problems. Basically, the Government threw the hot potato of brothels into the lap of councils without giving councils the power to deal with it. That is why we have had all this controversy and anger in many councils over the past 12 years. The bill has been long overdue.
As honourable members know, during my time in this Parliament I have actively opposed brothels because I believe many are linked with organised crime and involve exploitation of the women who work in them. I recall a lady who was obviously upset ringing me and saying she was a prostitute in a Hurstville brothel—perhaps one of those referred to by the Hon. Marie Ficarra. She told me she was being intimidated by the men running that establishment. I said, "Do you want help?" She said, "Yes, but not for me?for my 16-year-old daughter. She is being forced to work in the brothel with me." We hear of these ugly stories about some brothels—perhaps not all, but some.
Another case I was following up involved a George Street brothel that was exploiting Asian women. They were basically locked in the building. Though they had access to the roof, they were not allowed to leave the building at all. This continued until immigration authorities eventually caught up with the operator and took action. This State needs legislation dealing with brothels because councils that tried to close brothels under the 1995 Act found that almost impossible. They had to go through lengthy court cases and incur heavy legal expenses, sometimes costing ratepayers hundreds of thousands of dollars. So there has been an urgent need for this sort of legislation to enable councils to take action to close illegal brothels?that is, brothels they have not approved.
What will this bill do? We already have a number of pieces of legislation that we have debated over the years. This bill will not deal with all types of prostitution, such as street prostitution, which is also legal in New South Wales. That is dealt with in other Acts of Parliament. The bill being discussed tonight deals with the regulation of brothels and, where necessary, how to close illegal brothels. The Brothels Legislation Amendment Bill 2007 will enable brothel closure orders to commence after five working days. It makes additional provision in relation to the enforcement of brothel closure orders and other breaches relating to brothels, including limiting adjournments. This is important because lawyers representing brothels have used every legal tactic they can to delay court action and therefore keep a brothel operating, until finally the brothel owner reluctantly moves the operation to another location.
The bill makes clear that the Land and Environment Court may rely on circumstantial evidence, rather than direct evidence, of the use of premises when determining whether there is a breach of a requirement relating to brothels. We know of past reports that have been very embarrassing for councils that had to employ private investigators, who themselves or their representatives paid for the services of prostitutes so that they could give evidence in a court that premises are brothels. That was a very degrading process, and I am pleased it will no longer be necessary.
What is "circumstantial evidence"? That has not been spelt out in the bill. There are various levels of circumstantial evidence. It could be evidence that queues of men have been going into a particular building. The definition of "circumstantial evidence" needs to be spelt out, because my years of involvement with the issue tell me that illegal brothel operators will pay expensive lawyers to find loopholes in this legislation if they can. I imagine that the regulations will spell out what sort of evidence will be proper circumstantial evidence under this bill.
The bill has a unique provision. A council that is having trouble closing an illegal brothel can seek utilities orders prohibiting the supply of water, electricity or gas to brothel premises. I had previously asked the Government—because councils do not control such utilities, which are operated by private companies—what machinery could be put in place to enable a council to order, for example, Integral Energy not to supply an electricity service to customers. That could cause legal problems in the future. I would prefer that councils have absolute powers to approve brothels or to close illegal brothels, rather than having to go to the Land and Environment Court at all. As court proceedings are expensive, why not entrust local government with powers to control this activity?
The bill expands the definition of a brothel that may be subject to an order under the Restricted Premises Act 1943 to include premises that have been advertised or represented to be used for prostitution and are likely to be used for that purpose. Originally, it was hoped that any premises advertising prostitution would be regarded as brothels and therefore could be closed. Brothel owners cleverly framed advertisements to make it clear that they were providing sexual services and that women were available to provide those services, but included with the advertisement "no prostitution". Though the advertisement made it clear that prostitution services were being offered, that was a way of circumventing the prohibition on advertising.
I do not normally study brothel advertisements in newspapers, but today's Daily Telegraph has two or three pages of advertisements which, to me as a layman, appear to indicate that those establishments are operating as brothels. Sydney's Golden Apple, Liaisons and Victoria's Secrets have quite large advertisements in the Daily Telegraph , along with Impressions, Black Cat, Cleopatra's and so on. Those brothels are openly advertising in a major Sydney tabloid which members are supplied by the Parliament. I believe strong action should be taken.
I do not know the solution to this problem. If it is a legal establishment, the advertisement could carry a notation that it is a legal brothel, along with legal provision that only legal brothels may advertise. All of the brothels advertised in the Daily Telegraph might be legal, but I very much doubt that because there are so many of them, and I understand there are a relatively small number of legal brothels in the Sydney area. I am pleased that the Government has introduced this legislation. Hopefully, it will prove to be effective. We will have to monitor its operation.
The Hon. JOHN DELLA BOSCA (Minister for Education and Training, Minister for Industrial Relations, Minister for the Central Coast, and Minister Assisting the Minister for Finance) [8.28 p.m.], in reply: I thank all members for their contributions to the Brothels Legislation Amendment Bill. I note the general support for the overall provisions. I shall make a number of points in reply. The bill is about giving local government and other planning authorities powers to properly regulate the activities of brothels. I think that is one point on which there was consensus in the lengthy narratives of Ms Sylvia Hale and the Hon. Marie Ficarra. That is what the bill proposes. It seeks to clarify and strengthen the general policy position that the activities of brothels are no longer to be regulated under the criminal and moral codes, but rather purely on issues around planning and amenity. That reflects what I think is a move towards community consensus on this issue.
Both the honourable members I mentioned gave considered and lengthy accounts of the bill. I became confused at one stage. All of the contributions did not seem to relate to the bill; rather, they related to matters tangential to the bill, such as local government corruption. Those matters have now been placed on the record and I am sure the relevant Minister will consider them in detail at an appropriate time. I disagree with one statement made by Ms Sylvia Hale. Every business that operates in New South Wales is subject to the provisions of the Environmental Planning and Assessment Act and criminal sanction. That is a general public policy position which, in the normal course of events, is enthusiastically supported by the Greens. I do not understand her comment in that respect or its implications for this bill.
I repeat the general position that local government has the usual planning and other powers in relation to the sex industry and brothels. I make it clear that the Government is not of a mind to introduce draconian provisions such as those Ms Sylvia Hale argued had an implication for people operating single home-based sex industry activities. The Government will consider amendments when they are moved in Committee. I make the point that although the Government does not support draconian provisions in relation to brothels operating as home-based businesses, home-based businesses are subject to local government regulatory activity regardless of the activity that is conducted. To say that the industry should be completely unregulated is to almost flip the argument on its head. It seems to be a political point pushed for its own sake. I commend the bill to the House.
Question—That this bill be now read a second time—put and resolved in the affirmative.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 6 agreed to.
Reverend the Hon. FRED NILE [8.34 p.m.], by leave: I move Christian Democratic Party amendments Nos 1 and 2 in globo:
No. 1 Page 3, schedule 1 [1], lines 6 and 7. Omit all words on those lines. Insert instead:
brothel means a brothel within the meaning of the Restricted Premises Act 1943 , other than premises used or likely to be used for the purposes of prostitution by no more than one prostitute.
No. 2 Page 6, schedule 1 [3], proposed section 124AB (1), line 30. Insert "Subsections (5) and (6) extend to any such proceedings in relation to all brothels within the meaning of the Restricted Premises Act 1943." after "brothel.".
These amendments clarify the definition of "brothel" to make it clear in this legislation, as distinct from referring to the Restricted Premises Act 1943. It simply includes a consistent definition of "brothel".
Ms SYLVIA HALE [8.35 p.m.]: I have an amendment similar to Reverend the Hon. Fred Nile's amendment No. 2. If the amendments moved by the Reverend the Hon. Fred Nile pass, they will preclude me moving my amendment. I ask that they be dealt with at the same time. The definition in the amendments of Reverend the Hon. Fred Nile refers to only one person, whereas my amendment provides that premises do not constitute a brothel if operated by no more than two.
The CHAIR: Order! The Committee can deal with Greens amendment No. 3 later. Even if the Christian Democratic Party amendments are agreed to, the Committee would not be precluded from agreeing to an amendment that is inconsistent with another amendment that has already been agreed to. The member could not, however, move an amendment that is in conflict with an amendment that has been agreed to.
Ms SYLVIA HALE [8.36 p.m.]: I seek clarification. If a brothel is defined as having one operator as opposed to two operators, that would be inconsistent. In any event, I will speak briefly on the amendments moved by Reverend the Hon. Fred Nile. I would be very unhappy with a provision whereby only one sex worker is provided for in the definition. In terms of safety of the operators, it is beneficial to have a second person on the premises. A worker would not feel secure inviting a person onto their premises if they were by themselves. I do not believe that two sex workers working from the same premises would necessarily have an adverse impact on the amenity of the neighbourhood. Clearly, as I said in my earlier remarks, discretion is the essence of a sex worker operating from a home. It is highly desirable that the number of sex workers engaging in occupational home-based sex work should be two, rather than one.
The CHAIR: To clarify the matter, Ms Sylvia Hale may, with the leave of the Committee, move Greens amendment No. 3 so that both amendments, although inconsistent, are before the Committee.
Ms SYLVIA HALE [8.41 p.m.]: I move Greens amendment No. 3:
No. 3 Page 9, schedule 2 [1], lines 17 and 18. Omit all words on those lines. Insert instead:
Premises do not constitute a brothel if used by no more than 2 prostitutes whose earnings from prostitution are not shared with any other person who acts as an agent or procurer.
The amendment relates to the Restricted Premises Act and the definition contained therein. The wording of the amendment is based on legislation in Tasmania and New Zealand. My understanding is that restricting it to one sex worker is based on the fear that if you allow more than one, a pimp could be involved. The Government was anxious to prevent that from happening. I will outline the benefits of the definition in the amendment, which will address a number of issues.
First, it will reduce the number of unauthorised or illegal brothels. Second, it will prevent commercial brothels from masquerading as the homes of private sex workers. Third, it will remove the potential for third party involvement, for example pimps. Fourth, council powers to close the homes of private sex workers will come under a new definition. Fifth, it will eliminate the potential for corrupt conduct in relation to private sex workers. Sixth, the amendment is in line with the Premier's pre-election promise.
I will expand on each of the six points, and in doing so I acknowledge the assistance of the Scarlet Alliance, which represents a number of sex worker organisations. First, Greens amendment No. 3 will reduce the number of unauthorised or illegal brothels by up to 40 per cent if the homes of private sex workers are removed from the definition of a brothel. This can be promoted as one of the ways in which the Government is addressing community concerns about brothels. It will allow councils to use their resources to more effectively address genuine community concerns about commercial, unauthorised or illegal brothels—the big commercial ones.
Second, one of the chief benefits of the amendment is that it will affect industry employers who abuse the system by setting up a number of employees in individual premises. The amendment will prevent apartment blocks from being seconded for commercial operation under the guise of use by individual sex workers. For the first time, councils will be able to take effective action against such operators. This is covered in the definition, which provides that premises are not a brothel if the earnings from prostitution are not shared with any other person who acts as an agent or a procurer.
Third, pimps are not a feature of the Australian sex industry. However, control over individual sex workers by a third party is often raised as a concern in the development of sex industry regulations. In 2003 the New Zealand Government introduced the proviso "retain control over his or her individual earnings" as a way to reduce the potential for the involvement of a third party. Fourth, council closure powers would be enhanced. Council already has a number of regulatory options to address impacts on the amenity of the area.
The new definitions will apply to all home occupations and private sector sex workers. They include the power of council to investigate the complaint, contact the subject of the complaint to address the concern and seek a change in the work practices to alleviate the impact on the amenity of the area. If council receives further or continued complaints about the premises having significantly diverse impacts on the amenity of the area it can order the person to cease operation or work in a restricted manner, or require the person to apply for development approval. It does not restrict councils' powers in any respect.
Fifth, as indicated earlier, the Independent Commission Against Corruption is investigating allegations of corrupt council conduct in relation to the sex industry. By removing individual sex workers from the definition of a brothel, one reduces the potential for corruption. If it is a one-to-one situation there is no possibility of people having evidence validated by another person. As I indicated earlier, the final report of the task force identified policies that do not allow home-based sex workers to operate in residential zones and forces this sector of the sex industry to operate illegally. As Marie Ficarra said, this leaves them vulnerable to corrupt conduct by council officers.
Sixth, to adopt the amendment is not contrary to the pre-election promise made by the Premier. The amendment is not a step back from his promise to give councils further powers to take action against unauthorised brothels. Instead, the amendment makes a logical distinction between commercial brothels and private sex workers. This distinction is in line with the community's general understanding of the term "brothel".
When most people think of brothel they think of an undertaking involving a number of workers. They do not think of someone operating privately from his or her home. The definition, particularly as it permits no more than two people to work, is advantageous because it closes a loophole in the legislation that would allow a large commercial operator to set up a bogus operation whereby a whole apartment block is filled with individual workers whose earnings are funnelled to the commercial brothel operator. Green's amendment No. 3 closes the loopholes. It does not leave the system open to be taken advantage of in a way that is not envisaged, as I understand, by the Premier or the Parliament.
The CHAIR: Order! I realise that the members of the public in the gallery have been waiting quite some time for this debate to come on. However, it is not in order for people in the public gallery to participate in debate in any way either by verbal contribution or by clapping. Such interruptions do not facilitate the efficient consideration of the bill.
Question—That Christian Democratic Party amendments Nos 1 and 2 be agreed to—put and resolved in the affirmative.
Christian Democratic Party amendments Nos 1 and 2 agreed to.
Question—That Greens amendment No. 3 be agreed to—put and resolved in the negative.
Greens amendment No. 3 negatived.
Ms SYLVIA HALE [8.53 p.m.], by leave: I move Greens amendments Nos 1 and 2 in globo:
No. 1 Page 3, schedule 1 [2], proposed section 121ZR (2), lines 29–35. Omit all words on those lines.
No. 2 Page 4, schedule 1 [2], proposed section 121ZR (5), lines 12–16. Omit all words on those lines.
The first amendment omits from schedule 1 subsection 121ZR (2), which is headed "natural justice requirements not applicable". It exempts the persons who would issue orders from certain requirements that currently apply under the Environmental Planning and Assessment Act. The requirements are listed in sections 121G to 121K of the Act and they refer to orders that "make or are likely to make residents homeless". Under the Environmental Planning and Assessment Act councils cannot seek an order that would force people onto the street. That is surely the ultimate sanction in any society. In fact, as far as I know, to be able to render people homeless is in definite contravention of our international obligations under any number of treaties. This is an extraordinarily draconian provision. It not only has the potential to render people homeless but also to strip them of their livelihood. This is an unconscionable provision.
The second of the requirements that will not be applicable is that the person to whom the order is to be issued is to be given notice of a proposed order. Anyone who is familiar with council orders would know that people are usually given notice and have time to respond and to make representations and then those representations can be heard and a decision made. If members believe in any system of justice, the basis of it would be that people be given notice and the chance to put their case and to be heard. In fact, these provisions dispense with the need to give notice and the ability of the person on whom the notice is served to make representations. They also dispense with any need even to consider those representations.
What would happen in the case where a competitor or a person with malicious intent selects someone who is sexually active, who has a number of partners and who is operating from their house or unit, for some reason that has nothing to do with the activities going on and makes a complaint to council and council issues an order? The person against whom that order is issued will not have the opportunity to dispute what could be a wrong, ill-informed, ignorant or false accusation. They have been stripped of that power. That is incredibly unfair and contrary to basic principles of justice. The provisions also dispense with the appropriate procedures after the hearing and consideration of representations. It is obviously a very poor provision.
The second amendment allows brothels to revert to the status quo. It provides that a brothel would receive reasonable notice of an order just like any other business operating without development approval. The bill specifies only five days notice. The Greens seek to amend the legislation to revert to 28 days notice, which is the usual requirement. I commend the Greens amendments to the Committee.
The Hon. JOHN DELLA BOSCA (Minister for Education and Training, Minister for Industrial Relations, Minister for the Central Coast, and Minister Assisting the Minister for Finance) [8.57 p.m.]: The Government does not support the Greens' amendments. Some of the scenarios described by Ms Hale would not occur in practice because the requirement to be served is retained. All of the normal procedures that would otherwise be involved still apply. I commend the provisions to the Committee.
Ms SYLVIA HALE [8.58 p.m.]: The schedule clearly states that natural justice requirements are not applicable; it clearly removes those provisions in the Environmental Planning and Assessment Act that protect those procedures. The Minister is wrong in his assertion. This legislation deliberately states that the provisions relating to making residents homeless, notice being given of a proposed order and requiring representations do not apply. The purpose of this legislation is to repeal those provisions in the Environmental Planning and Assessment Act and the title suggests that it is a denial of natural justice.
The Hon. JOHN DELLA BOSCA (Minister for Education and Training, Minister for Industrial Relations, Minister for the Central Coast, and Minister Assisting the Minister for Finance) [8.59 p.m.]: That was not the point I was making. The issue I canvassed is the point made by Ms Hale. It is not uncommon for this kind of legislation to contain statutory provisions that ensure notice is given and so on. As I said, the notice must still be served. It is not uncommon for statutory provisions to replace the normal processes of natural justice in legislation.
Ms SYLVIA HALE [8.59 p.m.]: If that is the case, why are they being deliberately excluded by the provisions of the bill? If the Minister is saying that the provisions of natural justice will apply, why is the bill deliberately excluding them?
Question—That Greens amendments Nos 1 and 2 be agreed to—put and resolved in the negative.
Greens amendments Nos 1 and 2 negatived.
Question—That schedule 1 as amended be agreed to—put and resolved in the affirmative.
Schedule 1 as amended agreed to.
Ms SYLVIA HALE [9.01 p.m.]: I move Greens amendment No. 4:
No. 4 Page 10, schedule 2 [4] and [5], lines 16–21. Omit all words on those lines.
The purpose of this amendment is to try to remove the possibility of a single complaint giving rise to an order. As the legislation is worded it is possible for just one complaint, no matter how unwarranted, unfounded or incorrect, to give rise to an order. I believe the very existence of that power opens the potential for corruption. By stipulating a minimal requirement that may have implications for women, particularly married women, and for men as well, the bill makes them incredibly vulnerable. Their entire livelihood is at stake and it rests upon the whim of a council officer or the deliberate intent of a competitor, such as a large commercial operator, or even a single sex worker or a neighbour. The provision has the potential to deprive someone of their livelihood and their home.
If the Greens amendment is passed and the provision is deleted, the status quo of sufficient complaints relating to a brothel being the basis for issuing an order will remain in force. In the context that the bill is likely to be passed, that seems to me to be a far safer provision than allowing the process of issuing an order to be triggered by the making of only one complaint.
Reverend the Hon. FRED NILE [9.04 p.m.]: I move Christian Democratic Party amendment No. 3:
No. 3 Page 10, schedule 2 [4], lines 16–19. Omit all words on those lines. Insert instead:
[4] Section 17 (2A)
Insert after section 17 (2):
(2A) For the purposes of subsection (2), one complaint may be sufficient to warrant the making of an application in the case of a brothel used or likely to be used for the purposes of prostitution by 2 or more prostitutes.
This amendment is intended to clarify the complaints procedure that should be followed. If the amendment is passed, it will mean that in the case of a single prostitute, the council will need sufficient complaints, a term that is referred to in other legislation, such as the Restricted Premises Act. The procedure is based not on one complaint, but on multiple complaints, and the council is required to make an assessment of whether the complaints justify the taking of action. My amendment provides that if two or more complaints are received, only one complaint would be required.
The amendment is intended to prevent the making of malicious or vindictive complaints by one person against a single woman or a sole female parent who is living in a unit and has been accused of being a prostitute. If the council takes action and orders the woman to move out of the unit or house in five days, she would have to go to court to defend the action. That would not be fair or just. I asked the Committee to support my amendment.
The CHAIR: Because the amendments conflict, I will first put the Christian Democratic Party amendment. If that is carried, the first part of the Greens amendment, to delete lines 16 to 19, will lapse. I will then put the second part of the Greens amendment, which seeks to delete lines 20 and 21.
Question—That Christian Democratic Party amendment No. 3 be agreed to—put and resolved in the affirmative.
Christian Democratic Party amendment No. 3 agreed to.
The CHAIR: The first part of Greens amendment No. 4, to delete lines 16 to 19, is redundant. I will, however, put the question on the second part of the Greens amendment, which seeks to delete lines 20 and 21.
Question—That Greens amendment No. 4 (to delete lines 20 and 21) be agreed to—put and resolved in the negative.
Greens amendment No. 4 (to delete lines 20 and 21) negatived.
Question—That schedule 2 as amended be agreed to—put and resolved in the affirmative.
Schedule 2 as amended agreed to.
Schedule 3 agreed to.
Title agreed to.
Bill reported from Committee with amendments.
Adoption of Report
Motion by the Hon. John Della Bosca agreed to:
That the report be adopted.
Report adopted.
Third Reading
Motion by the Hon. John Della Bosca agreed to:
That this bill be now read a third time.
Bill read a third time and returned to the Legislative Assembly with a message requesting its concurrence in the amendments.