Response of Territorial Authorities to the PRA

9.5.1 The Local Government Act 2002
9.5.2 ‘Soliciting and Touting’
9.5.3 The Carterton and Queenstown Bylaws
9.5.4 The Resource Management Act 1991
9.5.5 The Health Act 1956
9.5.6 Non-PRA Bylaws, Other Statutes and Non-Legislative Responses

9.6 Local Government’s Approach to Small Owner-Operated Brothels
9.7 Legal Challenges to Bylaws Regulating the Sex Industry
9.8 Should the PRA’s Bylaw Making Power be Amended?
9.9 The Manukau City Council’s Concerns About Street-Based Sex Work

9.1 Introduction

The PRA recognises that some communities may be sensitive to exposure to the sex industry, and provides a mechanism to deal with those sensitivities. The PRA does this by granting powers to territorial authorities (TAs) in sections 12 – 15 of the Act. TAs have powers to regulate or prohibit signage advertising commercial sexual services, and to regulate the location of brothels (including, importantly, SOOBs). Some use of these powers has been controversial, and has led to legal action being taken against three TAs. This chapter examines the relationship between the sex industry and local government, and concludes that, while there have been difficulties, the current powers available to TAs are sufficient.

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9.2 Local Government

9.2.1 Introduction to Local Government in New Zealand

Central government delegates law making functions to local authorities so they can deal with local issues. While local government has been given significant regulatory authority, it is itself controlled by central government legislation, and in particular the Local Government Act 2002 (the LGA). Section 10 of the LGA provides that the purpose of local government is:

to enable democratic local decision-making and action by, and on behalf of, communities; and
to promote the social, economic, environmental, and cultural well-being of communities, in the present and for the future.

Local government in New Zealand is conducted by three types of body: regional authorities, territorial authorities, and unitary councils. There are 12 regional authorities and 73 TAs. The TAs are comprised of 16 city councils and 57 district councils. Four of the TAs are unitary councils. In New Zealand, a unitary council is a TA that also takes on the role of a regional authority. The four unitary councils are Gisborne District Council, Nelson City Council, Tasman District Council and Marlborough District Council.

Traditionally, local government has had responsibility for regulating services such as roads, sewerage, reserves and parks, and water supply. Under the LGA’s predecessor, the Local Government Act 1974, the powers and duties of local government were prescribed in considerable detail.[60] By contrast, the LGA adopts an enabling approach, which has provided local authorities with wider powers. Section 3 of the LGA provides that the Act’s purpose is ‘to provide for democratic and effective local government that recognises the diversity of New Zealand communities’.

The promotion of local autonomy and the enhancement of local democracy through public participation are very important local government objectives. One of the ways in which local government exercises this delegated power is through the creation of bylaws. The process for making bylaws is laid out in the LGA, and includes an obligation that the TA undertake extensive consultation with its community and other affected parties before making any new bylaws. Local government is also given powers under more than 100 other Acts, including the Local Electoral Act 2001, the Resource Management Act 1991 (RMA), and the Building Act 2004.

The RMA allows for the establishment of district plans by TAs. A district plan provides a set of rules as to what types of activity can be carried out in which areas that are under the TA’s authority. A district plan may set out residential, commercial and industrial zones, plus mixtures and gradations of these (e.g. residential/light commercial) and define what sorts of businesses and buildings may be situated in each zone. In order to engage in an activity in an area where that activity is not sanctioned by a district plan, a resource consent must be sought under the RMA. This system was to have repercussions for the location of brothels after the enactment of the PRA.

In passing the PRA, Parliament made it clear that it was not taking a moral stance on prostitution, but rather was legislating to deal with issues associated with the health and safety of sex workers, and their human rights. However, much of the debate from local communities about the legislation revolved around questions of morality, and was often expressed in terms of strong emotion.

Community consultation by some TAs, notably in Christchurch, Manukau, Auckland and Hamilton, revealed strong opposition to the establishment of brothels, particularly in residential areas. The bylaws that resulted from this consultation attempted to control the location of brothels, as well as regulating signage. Other bylaws have gone further, and prohibit soliciting and touting for brothels or commercial sexual services in a public place. In some cases, the local government’s response to community concern was at odds with the aims of Parliament when it decriminalised prostitution.

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9.3 Role of Territorial Authorities under the PRA

The PRA gives TAs the power to regulate two aspects of the sex industry: signage advertising commercial sexual services; and the location of brothels. Both powers are provided for by a bylaw making power. The PRA also provides special guidance to TAs when considering resource consents in relation to businesses of prostitution.

Section 12 of the PRA provides that a TA may make bylaws that prohibit or regulate signage that is visible from a public place and advertises commercial sexual services. It may make such bylaws only when satisfied that the signage is likely to cause nuisance or serious offence, or if it is incompatible with the existing character of the area.

Section 13 provides that a bylaw regulating or prohibiting signage may be made under section 12 even if that bylaw is inconsistent with the New Zealand Bill of Rights Act 1990. This provision expressly overrides section 155(3) of the LGA, which provides that bylaws must not be inconsistent with the Bill of Rights Act.

Section 14 provides that TAs can make bylaws to regulate the location of brothels. Section 4 of the PRA provides that a brothel is any premises kept or habitually used for the purposes of prostitution. The definition, therefore, can include SOOBs. This issue has been a sticking point for bylaws that fail to distinguish SOOBs from commercial sexual services businesses when regulating for the location of brothels.

Section 15 provides that, when a TA is considering an application for resource consent under the RMA for a land use relating to a business of prostitution, it must take into account whether the business is likely to cause a nuisance or serious offence, or is incompatible with the existing character or use of the area in which the land is situated. This is in addition to the usual matters the TA must consider under the RMA.

The differences between the regulatory frameworks for signage and location are crucial. Signage can be prohibited, and this can be done despite the fact that it might be inconsistent with a right under the Bill of Rights Act, such as the right to freedom of expression. In contrast, the location of brothels can only be regulated; brothels cannot be prohibited altogether. In addition, rights under the Bill of Rights Act, such as the right to freedom of association, must be respected.

Shortly after the PRA was enacted, Local Government New Zealand (LGNZ), an organisation charged with representing the national interests of all councils in New Zealand, issued Prostitution Reform Act Guidelines (the LGNZ Guidelines) for the use of TAs when considering their response to the PRA. This document provided a ‘toolbox’ of options including the use of district plans, bylaws under the PRA and LGA, bylaws under the Health Act 1956 and non-regulatory options. It identified the strengths and weaknesses of the options, and stated that ‘Ultimately it is for each TA to determine the most appropriate and efficient response [to the PRA] given the risks and consequences of adverse effects on the environment and particular sectors of the community’ (Local Government New Zealand, 2003).

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9.4 Results of Questionnaire

In early 2007, the Ministry of Justice, on behalf of the Committee sent a questionnaire on the PRA to the 73 TAs in New Zealand. Fifty-seven TAs responded. The questionnaire sought information on: TAs’ responses to the PRA (e.g. did they introduce a new bylaw or amend the district plan); their views on the adequacy of the powers granted to them by the PRA; and the level of community concern/number of complaints about the sex industry in the TAs’ districts.

Forty-three TAs indicated that the enactment of the PRA had prompted them to consider the sex industry in their district. A further 13 TAs responded that they had given the matter no consideration, with one TA failing to answer the question. Fifteen TAs decided that the matter could be managed by their district plan, although six of these opted to notify a change to their district plan as a result of the PRA. Fifteen TAs either promulgated a new bylaw or amended an existing one. The remaining 12 decided nothing needed to be done.

One TA, Wellington City Council, had introduced a bylaw regulating ‘commercial sex premises’ in 2001.[61] Once the PRA was enacted, Wellington City Council took advice from council officers, and decided no further action was necessary. At the time of writing, no new premises have received resource consent for the Courtenay Place precinct.

All 15 bylaws that were promulgated as a result of the enactment of the PRA control signage for brothels, and 13 also control location.

The questionnaire asked all TAs why they had responded to the PRA in the way they had. Where there has been a lot of TA activity, some TAs (e.g. Christchurch City Council, Manukau City Council) cited high levels of community concern. However, others, such as Grey District Council, did so as a ‘precautionary tool’, to manage the location of brothels if any should ever be established. At the time of answering the questionnaire, there were still no brothels in the District, as far as the TA was aware.

The most common reason for taking no action was that there was either no perceived sex industry in the TAs area, or a very small, discreet industry.

Twelve councils have defined specific areas within which brothels are permitted to operate. In all cases these areas are located in commercial and industrial zones. Eight of these have included SOOBs in their definition of brothel. Three of these have been challenged in court[62], with two having their bylaws struck down, largely because of their impact on SOOBs. These cases are discussed later in this chapter.

Of the 53 TAs that responded to a question about the number of complaints they receive about the sex industry, 30 said they had received no complaints. Only 5 had received more than 10 complaints. The most consistent reason for complaints was that a brothel was operating outside a designated zone or in a residential zone. The latter type of complaint was often directed at a SOOB. Not surprisingly, the TAs who had received the most complaints were based in the major cities.

When asked ‘Are the provisions in the PRA that allow TAs to make bylaws regulating the location of brothels and signage advertising brothels adequate?’, only eight TAs said ‘no’. Thirty-eight responded ‘yes’ and 12 replied that the question did not apply to them. When asked whether TAs’ powers to regulate the sex industry should be expanded, only seven responded ‘yes’. Four TAs sought greater power to control the location of brothels, particularly to keep them out of residential areas, and two were concerned about their apparent lack of power to control street sex work. A further issue addressed by two TAs was the need to clarify the roles and responsibilities of TAs and health authorities.

Some TAs commented that the LGNZ Guidelines were considered when developing their response to the enactment of the PRA, others noted that they had helped develop the LGNZ Guidelines, and one stated that, in the initial stages of developing its bylaw, the LGNZ Guidelines were still being developed.

Comment

The Committee believes it is significant that many TAs saw no need to respond to the enactment of the PRA, and that some that did were merely being cautious, rather than responding to a real issue. This confirms the findings of other research commissioned by the Committee that the industry is not widely spread around the country, but largely confined to cities and, to a far lesser extent, provincial centres.

Where there has been a lot of TA activity, such as in Manukau City and Christchurch, it is often a response to a wide range of social problems that do not necessarily relate to prostitution. Chapter eight discusses this further.

The Committee is concerned that TAs have attempted to force SOOBs to work in the same area as larger brothels. A SOOB, almost by definition, is run from home, and is therefore unlikely to be found in a commercial or industrial zone. Further, locating brothels in industrial and commercial zones often means they are in areas that are not as well lit, and certainly not as populated, as the suburbs. This may place sex workers working from SOOBs at greater risk of violence and/or robbery, as they may not have the security arrangements that a larger brothel has. In the Committee’s view, a SOOB should be regulated in the same manner as any other business run from home, that is by general rules provided for in a district plan. This is discussed further later in this chapter.

The Committee notes that a large majority of TAs were satisfied with their regulatory powers under the PRA, and did not see the need for these to be increased. The Committee accepts that the small number of TAs that are dissatisfied with their regulatory powers have genuine concerns. However, there are ways of addressing those concerns other than increasing the powers of TAs to regulate the sex industry. For instance, working with the street-based industry, rather then seeking powers to ban it, is more likely to be effective in the long run. The developing case law on the location of brothels indicates that control over the location of brothels by bylaw is possible, provided the control is not so total as to amount to prohibition.[63] The Committee opposes any increase in the TAs powers, as sought by the minority of TAs, as the exercise of these powers is unlikely to have the effect of furthering the purpose of the PRA.

The Committee is of the view that TAs would be assisted in ensuring that their responses to the PRA are appropriate in 2008 if LGNZ were to update its PRA Guidelines in the light of the developments since 2003.

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9.5 Other Mechanisms Available to Territorial Authorities

9.5.1 The Local Government Act 2002

Section 145 (General bylaw-making power for territorial authorities) of the LGA is as follows:

A territorial authority may make bylaws for its district for 1 or more of the following purposes:

protecting the public from nuisance:
protecting, promoting, and maintaining public health and safety:
minimising the potential for offensive behaviour in public places.

This general bylaw-making power is supported by a specific bylaw-making power in section 146, which provides, amongst other things, that regulations can be made for the regulation of ‘trading in public places’ (section 146(a)(vi)). Most TAs have very similar general bylaws that control all types of street trade made under this provision[64]. Section 14 of the PRA expressly states that bylaws regarding the location of brothels will be made under section 146 of the LGA, and some TAs have cited the LGA in addition to the PRA as the authority for their prostitution bylaws.

At least seven TAs have established a licensing regime for brothels by way of bylaws under the LGA and the Health Act 1956. Annual licensing fees range from $200 per annum to $566 per annum.

9.5.2 ‘Soliciting and Touting’

Some TAs have adopted a standard clause in their prostitution bylaws prohibiting ‘soliciting and touting’ for commercial sexual services in public places. ‘Soliciting’ in this context is ‘inviting a person to enter a brothel or other commercial sex premises’ (Grey District Council Commercial Sex Premises Bylaw 2007), rather than soliciting to sell sex oneself, or participating in street sex work. ‘Touting’ is ‘tout[ing] for business or otherwise verbally advertise[s] the business of prostitution or commercial sex premises’ (Rodney District Council General Bylaw: 1998, Chapter 22, Brothels and Commercial Sex Premises). Most TAs who have prohibited soliciting and touting have also prohibited the distribution in a public place of handbills, writings or pictures that advertise, identify or inform the public of any brothel or other commercial sex premises or the availability of commercial sex services.

Such regulations fall outside the regulation-making power of the PRA, and have been made under the LGA. Bylaws – regulating the sex industry (Caldwell, 2004), examines the Rotorua District Council Prostitution Bylaw 2003 (amongst others), which prohibits soliciting and touting for brothels. Caldwell concludes that these provisions are ultra vires (outside the scope of) the PRA, but is more circumspect as to whether they might be intra vires (within the scope of) section 145 of the LGA. Caldwell has even greater concerns about the provision’s susceptibility to challenge as being repugnant to general law and unreasonable. Caldwell is of the view that the prohibitions on touting and written advertising material probably achieve what the councils set out to achieve, and they would be far less susceptible to challenge if they stood alone, rather than being exposed to ‘collateral challenge’ because of the soliciting bylaw.

9.5.3 The Carterton and Queenstown Bylaws

At least two TAs have gone further – Carterton’s Prostitution Bylaw 2007 prohibits any person from soliciting commercial sexual services in any street, road, footpath, road reserve, public place or area within the District Council area, or where the person may be visible from any public place, reserve or area. The Queenstown-Lakes District Council’s Brothel and Prostitution Control Bylaw 2003, as amended by Amendment No 1, 2004, prohibits any person from soliciting (as defined in the terms of the Bylaw) within the Queenstown-Lakes District on or in any street, road, footpath, road reserve or public place or area, or where that person is, or may be visible from any public place, reserve or area.

The bylaws effectively prohibit street sex work in the two districts.[65] No prosecutions by councils have been taken under these provisions, and they have not been challenged for legality by any potential touts or street workers.

9.5.4 The Resource Management Act 1991

The RMA provides that each TA shall have a district plan covering its district, and that any land use (amongst other things) that would breach a district plan must be the subject of an application for a resource consent. This provides an effective means for TAs to control the location of commercial sexual service businesses, as many TAs noted in responding to the Committee’s questionnaire. Sixteen TAs stated that they would rely on the provisions of their district plans to regulate the location and signage of brothels, with six of those TAs notifying a district plan change in response to the enactment of the PRA.

Napier City changed the rules in its district plan in 2005 to restrict brothels from operating in the CBD. Napier City’s original proposed plan change would also have prohibited SOOBs from operating in the area, but the Council decided to exempt them after a submission from the local Medical Officer of Health.

9.5.5 The Health Act 1956

Section 23 of the Health Act 1956 provides TAs with broad powers to promote public health. The section provides as follows:

Subject to the provisions of the Act, it is the duty of every TA to improve, promote and protect public health within its district, and for that purpose every TA is empowered and directed to:

Appoint Environmental Health Officers to perform duties under the Act;
Regularly inspect the district to see if any nuisances, or any conditions likely to be injurious to the public health or offensive, exist in the district;
Take steps to abate the nuisance and remove the condition;
Enforce regulations under the Act;
Make bylaws under this or any other Act that authorises the making of bylaws for the protection of public health;
Provide reports to the Medical Officer of Health, as to diseases and sanitary conditions within its district, as the Director General of Health may require from time to time.

Some TAs have cited the Health Act, in conjunction with the PRA and LGA, as authority for the promulgation of bylaws regulating the sex industry. The Manukau City Council’s Brothels bylaw, for example, cites the Health Act as its authority, and includes hygiene, ventilation and lighting requirements to protect the public health. Rodney District Council has nearly identical requirements, while Auckland City Council has very similar hygiene requirements, but does not have the ventilation and lighting requirements of the other two councils.

Anecdotal evidence provided to members of the Committee indicates that some brothels in Manukau have applied for brothel certification, but withdrawn their applications when learning of the hygiene and health and safety requirements in the Auckland and Manukau bylaws. This, coupled with the fact that the Auckland bylaw includes an expensive licensing system over and above the PRA certification system, has led some to choose to remain ‘massage parlours’.

9.5.6 Non-PRA Bylaws, Other Statutes and Non-Legislative Responses

Some general bylaws can be used to regulate the sex industry. Manawatu District Council, for example, includes provisions on signage for commercial sexual services in a part of its general bylaw headed ‘Advertising Signs’. Palmerston North takes the same approach in its “Signs and Use of Public Places Bylaw 2004″.

A range of regulatory statutes empower TAs to regulate various activities. TAs have roles under the Sale of Liquor Act 1989 and the Food Act 1981 that will be relevant to the regulation of some brothels. Similarly, if a new brothel is being built, added to or refurbished, TAs have a role as Building Consent Authorities under section 12 of the Building Act 2004.

Some TAs have made non-regulatory responses to the sex industry in its most visible form. These include adopting CPTED principles, placing extra rubbish bins, lighting and toilets in areas where street work is regularly carried out, initiating ‘street ambassadors’ schemes aimed at fostering relationships in the community and working closely with the sex industry to manage any problems as they arise. Christchurch, Wellington and Manukau City provide examples of these approaches. These responses are described in chapter eight.

Comment

Only the Courts can decide if provisions that prohibit soliciting and touting are valid. However, soliciting or touting for a brothel has never been common practice in New Zealand, and the decriminalisation of the sex industry does not seem to have led to its development. The many TAs that do not have a prohibition on soliciting and touting have not been inundated with the practices, so it seems that bylaws that prohibit such have had little practical effect.

The Committee is concerned about the Carterton and Queenstown bylaws, but recognises that, as there is no history of street-based sex work in Carterton or Queenstown, the true impact of the bylaws is probably negligible.

On the whole, the Committee believes that TAs are using the RMA and district plans responsibly and effectively to regulate the business of prostitution. However, the Committee has concerns about the potential for district plans to be used to effectively prohibit brothels, and particularly SOOBs, and notes that on two occasions the court has found this to be the case.

The Committee has concerns that regulations made under the Health Act and the LGA may place such onerous conditions upon brothels that they choose to remain ‘underground’ and term themselves massage parlours. The imposition of a licensing regime by TAs, with high fees for brothel operators, has the potential to create a two-tier industry that the designers of the relatively inexpensive certification scheme in the PRA were at pains to avoid. As far as the Committee is aware, high licensing fees and restrictive health, safety and hygiene requirements are rare at present, but the Committee wishes to place on the record that these practices have the potential to subvert the intention of the PRA, and create a two-tier system.

As indicated elsewhere, the Committee is pleased to note that most TAs have adopted appropriate non-regulatory approaches to the sex industry, and encourages others to do likewise.

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9.6 Local Government’s Approach to Small Owner-Operated Brothels

SOOBs have caused particular consternation to some TAs. Some residents have expressed concerns that the suburbs will be inundated with SOOBs, leading to decreased land values/property valuations, late night noise, littering and a general lowering of the tone of their neighbourhood.

Suspicion has been expressed to the Committee by SOOB workers that complaints are from other brothels/sex workers attempting to harm their competitors. However, the Committee has received no evidence to confirm this.

Comment

SOOBs are not a new phenomenon, and have not caused widespread problems in the past. Most are so discreet that they go unnoticed. A SOOB can consist of a single sex worker working alone, and at the most only four sex workers can operate from a premises to qualify. There is little evidence that such activity causes disturbance, other than moral indignation, to the community. When complaints regarding suspicions that a neighbour is operating a SOOB are made to a TA, they are generally resolved by discussion between the SOOB, the TA and the complainant.

The Committee notes that, while the PRA clearly contemplates SOOBs’ continued existence, some residents, and therefore TAs, have grave reservations about the sex industry operating in the suburbs. The Committee is confident that these fears are largely unfounded, and is hopeful that, in time, this will be agreed to be the case. In the meantime, the Committee sees no reason to amend the PRA to impose tighter controls on the location of SOOBs, notwithstanding calls from some TAs for such amendment.

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9.7 Legal Challenges to Bylaws Regulating the Sex Industry

Any bylaw is subject to challenge in the High Court by way of judicial review. A challenge can be brought by any person who has been adversely affected by a bylaw and, at common law, asks the court to find that a TA has: failed to consider relevant matters; considered irrelevant matters; failed to consult or follow statutory procedures; or reached a decision that is so unreasonable no reasonable person could have reached it.

In addition to the common law requirements, New Zealand has established a statutory framework for the challenge of bylaws. This is as follows:

Section 14 of the Bylaws Act 1910 provides that a bylaw will be invalid if it deals with a matter dealt with by the general law, and is repugnant to that law.
Section 17 of the Bylaws Act provides that a bylaw is invalid if the decision made about it was unreasonable, as judged by reference to the scope of the bylaw and the impact it will have on the community affected by it.
Section 17 of the Bylaws Act also provides that a bylaw is invalid if it is ultra vires, i.e. it goes beyond the power granted by the primary legislation.
Section 155(3) of the LGA provides that a bylaw is invalid if it is inconsistent with the New Zealand Bill of Rights Act 1990.

The bylaw making power is therefore limited by scope (to signage and location of brothels), by the common law principles relating to judicial review, and by statutory provisions that reflect those common law principles.

Three bylaws controlling the location of brothels have been challenged at the time of writing. SOOBs lie at the heart of two of the cases, and were discussed in all three.

Willowford Family Trust and Anor v Christchurch City Council (HC Christchurch, Pankhurst J, 29 July 2005)

The Christchurch City Brothels (Location and Signage) Bylaw 2004 restricted brothels to an area in the central business district. This meant that no brothels, including SOOBs, could operate in the suburbs. This issue had been contested during the consultation on, and consideration of, the bylaw, with a Prostitution Reform Sub-Committee (of the City Council) raising the possibility of amending the draft bylaw to allow SOOBs to operate in any business zone. This was rejected by the Council.

Pankhurst J concluded that the bylaw was invalid because of its effect on SOOBs. At paragraph 94, he concluded:

… the practical effect of the bylaw is to deny the existence of SOOBs in the city of Christchurch. In that regard I am unable to accept the contention that any intrusion is minimal, because SOOBs may still be established within the scheduled area, or because work in SOOBs is only one facet of the business of prostitution and need not be accommodated in terms of a local bylaw. The evidence to which I have already referred indicates otherwise. For these reasons I conclude that the location aspect of the bylaw is invalid in relation to its impact upon SOOBs.

Because argument had not been heard on separating out the location aspect of the bylaw from the rest of it, the Judge struck out the whole bylaw. The approach taken by the High Court found favourable academic comment.[66]

J B International v Auckland City Council (HC Auckland, Heath J, 14 March 2006)

The Auckland City Council’s Brothels and Commercial Sex Premises Bylaw severely restricted the locations where any brothel could operate. The Court found that the aspect of the bylaw that dealt with the location of brothels was invalid and accordingly struck it down, leaving the rest of the bylaw operational. At paragraph 99, Heath J concluded:

In my view, a bylaw that effectively forbids the operation of a small owner-operated brothel in a suburban home is ultra vires the bylaw making power contained in s. 14 of the Act. It can also be characterised as unreasonable. That is because, contrary to parliament’s clear intentions, all brothels (including small owner-operated brothels) are excluded from virtually all areas within the Isthmus (including suburban residential areas where homes may be used as small owner-operated brothels) due to the way in which the location of brothels has been defined.

The Court went on to state ‘a Council’s bylaw making power must be exercised on legal rather than on moral grounds. And, importantly, there must be a nexus between the policy concern identified and a location from which brothels have been excluded.’[67]

J Conley v Hamilton City Council. (HC Hamilton, Ellen France J, 19 July 2006)

The Hamilton City Council Prostitution Bylaw 2004 creates a ‘Permitted Brothel Area’. This area covers ‘the CBD and the city’s main industrial area’.

The bylaw was challenged on a number of grounds, the strongest of which was that it effectively prohibited SOOBs from operating. The applicant claimed that SOOBs have special features, and are ‘a home based industry with their ‘natural habitat’ being the suburbs’.[68]

The Judge recognised that the PRA acknowledges the existence of SOOBs, and makes provision for them. She then stated ‘it does not necessarily follow that small SOOBs have to be provided for in just the way that the applicant and others may prefer.’[69] She stated that, while the Act recognises that some sex workers will prefer to work in SOOBs, Pankhurst J and Heath J appear to go beyond that when they describe the intention of the Act as recognising SOOBs ‘as a constituent part of the business of prostitution.’[70]

The Judge then examined the facts of the situation and concluded that, while it would be a challenge to find a house in the permitted area that could be used as a brothel, it would not be impossible.[71] She further concluded that there is a difference in fact and degree between this case and the Auckland case, and that she did ‘not accept the evidence shows the Council has prohibited under the guise of regulation.’[72]

Julie Conley v Hamilton City Council (CA, Hammond, Robertson and Arnold JJ, 28 November 2007)

The plaintiff appealed the Hamilton decision to the Court of Appeal. The court found that the bylaw did not amount to a prohibition of brothels in Hamilton, that the evidence of the effect of the bylaw on SOOBs was scant, and that when ‘choices being made are distinctly ones of social policy… a court should be very slow to intervene’[73]. However, the court expressly stated that the case will not dictate the outcome of other cases, as ‘appropriate requirements for particular locales may very well vary.’[74]

Comment

The Committee endorses the approach taken in Willowford. The PRA decriminalises prostitution, and a bylaw that effectively prohibits sex workers from operating in their preferred manner, as self-employed owner operators, partially defeats the purpose of the PRA.

Auckland’s bylaw was more wide ranging than that of Christchurch, and the Committee was not surprised to see it struck down in light of the Willowford decision. Of course, Willowford is not binding on other High Court decisions, but up until this point it appeared as though jurisprudence was developing whereby bylaws that effectively prohibit SOOBs would be found to be ultra vires and struck down. The Committee is also encouraged by the Court clearly re-iterating that decisions on the making of bylaws must be made on legal, rather than moral grounds. In the Committee’s view, this approach reflects the spirit of the PRA, and furthers its purpose.

In the Committee’s view, the sex industry should be regulated, as far as possible, in the same manner as other industries, that is, subject to the general law of nuisance and a regulatory scheme that is based around ameliorating that nuisance. Such an approach may assist in reducing the stigma attached to the sex industry. Where nuisance is not a likely result of the establishment of a shop, factory or brothel, it is unreasonable to place a prohibition on its establishment.

On the Committee’s reading of the Hamilton decision, the case was distinguished on its facts, and the fundamental approach taken in the earlier decisions is still appropriate.

The Court of Appeal decision is, of course, binding on all future High Court decisions, and requires careful interpretation. However, the Court has gone out of its way to state that each case will be different, depending on the locale, giving later High Court Judges leeway to approach each challenge on its merits.

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9.8 Should the PRA’s Bylaw Making Power be Amended?

The Human Rights Commission (HRC), in a letter to the Committee regarding the impact of the PRA on human rights, stated that there appears to be a significant degree of uncertainty about the level of protection accorded to the human rights of sex workers under section 3(a) of the PRA, particularly about territorial authorities’ ability to make bylaws under sections 12 – 14 of the Act.

At the time of writing, at least five TAs have bylaws controlling the location of brothels that remain unchallenged. When responding to the questionnaire, some TAs indicated that they would consider promulgating similar bylaws when the legal challenges were resolved. This may lead to further legal action, as each bylaw has to be judged in terms of its local effect, rather than solely on a legal principle. Resolving matters through litigation is costly, time consuming, and places undesirable stress on both parties. Therefore, the Committee has considered whether the PRA should be amended to provide clearer guidance to TAs on regulating the sex industry by bylaw.

One option to deal with this issue would be to amend the PRA to exclude SOOBs from the definition of brothel. This would remove them from regulatory regimes controlling the sex industry, and allow them to be dealt with under the general law. However, it would be something of a fiction to state that four sex workers working from one premise is not a brothel, or that a small owner-operated brothel is not a brothel. Furthermore, Parliament very carefully legislated for SOOBs to be specifically excluded from the PRA’s licensing regime, but included in terms of the PRA’s protections and obligations. To alter that balance by stating that SOOBs are not brothels might have unintended consequences.

Another option is to attempt to legislate rules as to how SOOBs are to be managed by bylaws in such a way that their existence is not threatened. However, as each TAs geographical situation and population spread is different, it would be very difficult to provide hard and fast rules as to the drafting of local bylaws.

At the other end of the spectrum, some TAs called for greater powers to keep SOOBs out of the suburbs. The Committee does not support such an approach, and believes that SOOBs have as much right to operate as any other small business. TAs should be reassured by the recent Court of Appeal decision of Conley v Hamilton City Council[75] which emphasises that Courts should be ‘very slow to intervene’[76] when examining a bylaw that regulates the location of brothels.

The Committee notes that the law is still developing in this area, and the four decisions have gone some way towards clarifying it. It may be premature to amend the PRA on this issue, and it would certainly be controversial. The Committee is of the view that, at this stage, the matter should be allowed to stand.

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9.9 The Manukau City Council’s Concerns About Street-Based Sex Work

In 2005, community concern and frustration about street-based prostitution and unruly behaviour on the streets of Manukau led the Manukau City Council (MCC) to develop the Manukau City Council (Control of Street Prostitution) Bill. The Manukau Bill sought to prohibit street-based prostitution and associated behaviour in the Manukau District. It created two new offences (soliciting and loitering for the purposes of soliciting) which would only apply within Manukau.

After its first reading on 7 December 2005, the Manukau Bill was referred to the Local Government and Environment Committee for consideration. The LG and E Committee was advised by the Ministry of Justice and the Department of Internal Affairs, both of which advised against the Bill’s passage.

In its submission to the LG and E Committee, the MCC argued that its Bill promoted the purpose of the PRA, as street-based sex work runs counter to the aims of promoting the health, safety and human rights of sex workers. It also refuted claims that its bylaw, which limited the location of SOOBs to Business Zones, had led to the ‘problem of street prostitution’.[77]

The LG and E Committee heard submissions from a number of people in Manukau City who expressed concerns about the negative effects of street sex work and associated conduct in the area. These effects included increased littering, noise and nuisance, a reduced sense of public safety and civic pride, and a decline in property values. The LG and E Committee acknowledged that these are real concerns that need addressing, but was not persuaded that the enactment of the Bill would do so. It suggested various options available to MCC to increase street safety for all people, which were more likely to be more effective than the passing of a local Act.

The LG and E Committee believed that the Bill would present enforcement and jurisdictional difficulties. It stated:

While local legislation typically addresses issues unique to a particular locality and does not involve itself with the criminal law, this local bill creates offences that criminalise behaviour that exists throughout New Zealand. If the bill were passed, citizens would be subject to conflicting criminal laws, depending on their current geographical location. Unlike federal states, New Zealand does not have an established framework for enforcing different criminal offences on a region by region basis.[78]

The LG and E Committee also saw the Bill as being an implicit amendment of the PRA, and believed that allowing a local Act to amend a public statute in this way would set a significant and undesirable precedent.[79]

The LG and E Committee argued that, should the Bill be passed, the displacement of street-based sex workers would impact on neighbouring local authorities where soliciting is not prohibited. This could prompt neighbouring Councils to enact similar legislation. The piecemeal revocation of the decriminalisation of prostitution (as enacted by the PRA) could result.

As well as the Bill being contradictory to the intent of the PRA, the LG and E Committee saw the Bill as having various undesirable practical effects, such as deterring people from leaving the industry, and driving workers underground, which could increase the level of danger they face. One clause of the Bill was also thought likely to be in breach of the Bill of Rights Act.

The Bill was voted down at its second reading, on the advice of the LG and E Committee. Since then, Manukau City has continued to use non-legislative approaches to deal with street-based sex work, (as outlined in chapter eight of this report) and continued to enforce its 2004 Brothels Bylaw. This bylaw prohibits SOOBs from residential areas, although the MCC states that there are houses in its commercial zones (where brothels are permitted) that could be used to operate a SOOB.

The MCC continues to have concerns about street-based sex work. In its response to the Committee’s questionnaire, the MCC states that, ‘having invested considerable time and resources in non-regulatory methods, the MCC believes that legislation is the weak link’. It calls for an amendment to the PRA so that street-based sex work can be regulated or prohibited, with appropriate enforcement powers for the Police. It also seeks clarification of powers to regulate the location of brothels and the burden of proof required for the prosecution of unlawfully established brothels.

Finally, the MCC seeks the power to impose infringement fees for breaches of its brothel bylaw. This would require the issuing of regulations (at central government level) providing that breaches of the bylaw are infringement offences.

Comment

The prohibition of street-based sex work has never been effective in this country or overseas, and there is no reason to believe that it would have been in this case. Rather, it may have driven street workers to less safe places, or made them work illegally in prohibited zones.

Accordingly, the Committee endorses the reasoning of the LG and E Committee. Contrary to the MCC’s submission, the Bill ran directly counter to the purpose of the PRA, namely the protection of the human rights of sex workers and the promotion of their health and safety. The PRA aims to protect the rights of all sex workers, including those who choose to work from the street.

The Committee visited Manukau City, and particularly Hunters Corner. It seemed apparent to Committee members that street-based sex workers were not the only cause of unease in the area. When discussing the matter with local Police, the Committee was informed that the main social problems locally are family violence and issues stemming from the abuse of alcohol.

The law regarding the power to regulate the location of brothels has been clarified by the courts, particularly now that there is a Court of Appeal decision on the matter. Quite simply, a TA cannot prohibit the sex industry under the guise of regulation. Provided that there is ‘a nexus between the policy concern identified and a location from which brothels have been excluded’, a bylaw will be valid. As discussed above, the Committee does not see the need for amending the legislation at this stage in the law’s development.

The burden of proof in any summary criminal procedure falls on the informant, or the prosecution. However, the PRA makes a limited exception to this general rule. If a person is charged with operating a brothel without a certificate, and offers as a defence that they are not required to hold a certificate because they are working at a SOOB, it is for the person charged to prove that assertion on the balance of probabilities[80].

There have been no regulations prescribing that a breach of any sex industry bylaw is an infringement offence to date. The Committee has been advised by the Ministry of Justice that it has developed guidelines, due to be published shortly, indicating in which circumstances it is appropriate for infringement regimes to be established. TAs and LGNZ may wish to consult these guidelines, and determine whether LGNZ, through the Department of Internal Affairs, seek to have regulations promulgated to establish an infringement regime.

The Committee agrees with the MCCs submission that the bylaw prohibiting SOOBs from operating anywhere other than in Business Zones has not led to the development of a street working scene. The CSOM report indicates that there is very little movement between the sectors of the sex industry, so it is very unlikely that a large proportion of Manukau street sex workers would transfer to SOOB work if it were more available.

The Committee visited the areas frequented by street-based sex workers in Manuaku as part of its general research, and also received a substantial amount of information from MCC in response to the questionnaire. We recognise that the Council has genuine concerns about street activity, and has taken many non legislative steps to try to deal with it. We recommend that it continue to work with NGOs and the street workers themselves, and consider the approaches outlined in chapter eight.

Conclusions

For the majority of TAs, the PRA and the sex industry is not an issue. However, for some TAs in the Auckland area, and for Christchurch Council, there are concerns regarding street work. For these TAs, the level of public interest was such that they would have been remiss not to act. The Committee commends the Manukau and Christchurch TAs for their non-legislative efforts to deal with a social issue, and encourage them to continue these efforts.

The court decisions regarding the regulation of the location of brothels, and Parliament’s rejection of the Manukau Bill have clarified the extent of TAs powers regarding the location of brothels. There may be further legal challenges to bylaws ahead regarding location, but in the light of the Court of Appeal decision, each case will be settled on its own facts. Accordingly, it would be inappropriate, and very difficult, to legislate hard and fast rules that would apply nationwide to the location of brothels.

Ongoing work by a range of agencies, in co-operation with the local TA, and the sex industry itself, is desirable, rather than the industry and the TAs working against each other.

The Committee concludes there is no need to amend the provisions of the PRA in light of the experience of local government working with it.

Recommendations

The Committee recommends that LGNZ consider updating the Prostitution Reform Act Guidelines it issued in 2003 in the light of developments since that time.

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Footnotes

60 Much of the Local Government Act 1974 was repealed by the LGA; the provisions that remain in force are generally not relevant to the regulation of the sex industry.

61 The Commercial Sex Premises Bylaw defined such premises far more broadly than what today are known as brothels but were then called massage parlours, to include adult bookshops, strip clubs and other similar businesses. The bylaw is part of the Council’s Consolidated Bylaw. This bylaw banned ‘commercial sex premises’ from the ‘Courtenay Place Precinct’, which comprises the city’s main nightlife centre, and controlled signage, advertising and touting for commercial sex premises throughout the city. Existing premises in the Courtenay Place Precinct at the time the bylaw was introduced were deemed to be approved, but any new commercial sex premises that wished to establish premises in the Courtenay Place Precinct would have to apply for resource consent..

62 The bylaws promulgated by the Auckland, Christchurch and Hamilton City Councils.

63 J Conley v Hamilton City Council, HC Hamilton, Ellen France J, 19 July 2006

64 Christchurch City Council has recently considered whether to use a proposed Public Places Bylaw to regulate street-based sex work. Staff advised the Council of various practical issues that would arise with such an approach, particularly regarding enforcement. The Council was advised that staff would report on the issue after the publication of this report.

65 Information the Committee received from NZPC indicates that there is no street-based work outside of Auckland, Wellington and Christchurch.

66 In Brothels, Bylaws, Prostitutes and Proportionality Dean Knight of the Victoria University of Wellington, stated: ‘The decision to quash the bylaw as it related to small owner-operated brothels was, in my view, sound, although I would have preferred a clearer distinction to be made as to the basis for this finding.’

67 At para 102.

68 J B International v Auckland City Council.

69 ibid

70 Para 41

71 Para 72

72 Para 76

73 Julie Conley v Hamilton City Council, CA, Hammond, Robertson and Arnold JJ, 28 November 2007.

74 Para 75

75 Para 75

76 ibid

77 Manukau City Council Submission to the LG and E Committee on the Bill.

78 Manukau City Council Report, Local Government and Electoral Committee (2006).

79 ibid

80 This is similar to the approach taken to other ‘positive defences’ in criminal cases, such as insanity of the partial defence of provocation to a charge of murder.

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