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This is a Bill, not an Act. For current law, see the Acts databases.


BROTHELS LEGISLATION AMENDMENT BILL 2007





                        New South Wales




Brothels Legislation Amendment
Bill 2007


Contents

                                                                    Page
          1    Name of Act                                            2
          2    Commencement                                           2
          3    Amendment of Environmental Planning and Assessment
               Act 1979 No 203                                        2
          4    Amendment of Restricted Premises Act 1943 No 6         2
          5    Amendment of Land and Environment Court Act 1979
               No 204                                                 2
           6   Repeal of Act                                          2
  Schedule 1   Amendment of Environmental Planning and Assessment
               Act 1979                                               3
  Schedule 2   Amendment of Restricted Premises Act 1943              9
  Schedule 3   Amendment of Land and Environment Court Act 1979      13
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.


                                                Clerk of the Legislative Assembly.
                                                Legislative Assembly,
                                                Sydney,                     , 2007




                             New South Wales




Brothels Legislation Amendment
Bill 2007
Act No      , 2007




An Act to amend the Environmental Planning and Assessment Act 1979, the
Restricted Premises Act 1943 and the Land and Environment Court Act 1979 with
respect to the closure of disorderly or unlawful brothels; and for other purposes.




I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.


                                   Assistant Speaker of the Legislative Assembly.
Clause 1          Brothels Legislation Amendment Bill 2007




The Legislature of New South Wales enacts:
 1    Name of Act
               This Act is the Brothels Legislation Amendment Act 2007.
 2    Commencement
               This Act commences on a day or days to be appointed by proclamation.
 3    Amendment of Environmental Planning and Assessment Act 1979
      No 203
               The Environmental Planning and Assessment Act 1979 is amended as
               set out in Schedule 1.
 4    Amendment of Restricted Premises Act 1943 No 6
               The Restricted Premises Act 1943 is amended as set out in Schedule 2.
 5    Amendment of Land and Environment Court Act 1979 No 204
               The Land and Environment Court Act 1979 is amended as set out in
               Schedule 3.
 6    Repeal of Act
         (1)   This Act is repealed on the day following the day on which all of the
               provisions of this Act have commenced.
         (2)   The repeal of this Act does not, because of the operation of section 30
               of the Interpretation Act 1987, affect any amendment made by this Act.




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Brothels Legislation Amendment Bill 2007

Amendment of Environmental Planning and Assessment Act 1979                  Schedule 1




Schedule 1             Amendment of Environmental Planning
                       and Assessment Act 1979
                                                                                (Section 3)
[1]   Section 4 Definitions
      Insert in appropriate order in section 4 (1):
                   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.
[2]   Sections 121ZR and 121ZS
      Insert after section 121ZQ:
   121ZR     Special provisions relating to brothel closure orders
             (1)    Definitions
                    In this section and section 121ZS:
                    brothel closure order means an order No 1 or No 15 under the
                    Table to section 121B (1) to cease using premises as a brothel or
                    in respect of the use of premises as a brothel, whether or not the
                    order also prohibits the premises from being used for, or relates
                    to the use of the premises for, any related sex uses.
                    related sex uses means the following:
                     (a) the use of premises for the provision of sexual acts or
                           sexual services in exchange for payment,
                    (b) the use of premises for the provision of massage services
                           (other than genuine remedial or therapeutic massage
                           services) in exchange for payment,
                     (c) the use of premises for the provision of adult entertainment
                           involving nudity, indecent acts or sexual activity if the
                           entertainment is provided in exchange for payment or if
                           the entertainment is ancillary to the provision of other
                           goods or services.
             (2)    Natural justice requirements not applicable
                    A person who gives a brothel closure order is not required to
                    comply with sections 121G-121K.
                    Note. Sections 121G-121K provide, among other things, for notice of
                    proposed orders. Sections 121L and 121N apply to brothel closure
                    orders and provide for reasons for an order to be given to the person to
                    whom an order is given as well as information about appeal rights.




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               Brothels Legislation Amendment Bill 2007

Schedule 1     Amendment of Environmental Planning and Assessment Act 1979




             (3)   Additional prohibitions may be included
                   A brothel closure order may also prohibit the use of the premises
                   for specified related sex uses, if the use of the premises for the
                   specified uses is a prohibited development or a development for
                   which development consent is required but has not been
                   obtained.
             (4)   Additional persons to whom order may be given
                   In addition to any other person to whom a brothel closure order
                   may be given, a brothel closure order may be given to any person
                   apparently in control of or managing, or assisting in the control
                   or management of, the brothel.
             (5)   Period for compliance
                   A brothel closure order must specify a period of not less than 5
                   working days within which the order must be complied with.
                   Note. An appeal against a brothel closure order may be made under
                   section 121ZK.
             (6)   Additional persons or bodies that may make brothel closure
                   orders
                   In addition to the persons specified by section 121B, a brothel
                   closure order may be made by a person or body exercising
                   planning or regulatory functions in respect of the area in which
                   the premises are situated and authorised by the Minister to make
                   brothel closure orders.
             (7)   Defences
                   It is a sufficient defence to a prosecution for an offence that arises
                   from a failure to comply with a brothel closure order if the
                   defendant satisfies the court that:
                    (a) if the defendant is the owner of the premises, the defendant
                            has taken all reasonable steps to evict the persons
                            operating the brothel or using the premises for the
                            specified related sex uses, or
                   (b) in all cases, the defendant has taken all reasonable steps to
                            prevent the use of the premises as a brothel or for the
                            specified related sex uses.
             (8)   Appeals
                   Regulations may be made for or with respect to the following
                   matters:
                   (a) the conferral of jurisdiction on Local Courts with respect
                         to appeals against brothel closure orders,



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Brothels Legislation Amendment Bill 2007

Amendment of Environmental Planning and Assessment Act 1979                 Schedule 1




                    (b)    removing the right to appeal under section 121ZK if an
                           appeal is made to a Local Court against a brothel closure
                           order under the regulations,
                    (c)    the conferral of jurisdiction on the Land and Environment
                           Court with respect to appeals from decisions of a Local
                           Court on appeals against brothel closure orders,
                    (d)    the modification of provisions of the Crimes (Appeal and
                           Review) Act 2001 for the purposes of appeals referred to in
                           paragraph (c).
             (9)    Section prevails over Division
                    This section has effect despite any other provision of this
                    Division.
                    Note. Failure to comply with a brothel closure order is an offence (see
                    section 125).

   121ZS     Enforcement of brothel closure orders by cessation of utilities
             (1)    If a person fails to comply with a brothel closure order, a Local
                    Court or the Land and Environment Court may, on the
                    application of the person who gave the order, make an order (a
                    utilities order) directing that a provider of water, electricity or
                    gas to the premises concerned cease to provide those services.
             (2)    An order may apply to the whole or part of premises.
             (3)    A utilities order ceases to have effect on the date specified in the
                    order, or 3 months after the order is made, whichever occurs first.
             (4)    An application for a utilities order must not be made unless not
                    less than 7 days notice of the proposed application is given to the
                    following persons:
                     (a) any person to whom the brothel closure order was given,
                    (b) any provider of water, electricity or gas to the premises
                           who is affected by the application,
                     (c) any owner or occupier of the premises.
             (5)    An owner or occupier of premises, or a provider of water,
                    electricity or gas to premises, who is affected by an application
                    for a utilities order is entitled to be heard and represented in
                    proceedings for the order.
             (6)    In determining whether to make a utilities order, the court is to
                    take into consideration the following matters:
                     (a) the effects of the failure to comply with the brothel closure
                           order,



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                    Brothels Legislation Amendment Bill 2007

Schedule 1          Amendment of Environmental Planning and Assessment Act 1979




                       (b)    the uses of the premises,
                       (c)    the impact of the order on the owner, occupier or other
                              users of the premises,
                       (d)    whether the health or safety of any person, or of the public,
                              will be detrimentally affected by the order,
                       (e)    any other matter the court thinks appropriate.
              (7)      A utilities order must not be made for premises, or any part of
                       premises, used for residential purposes.
              (8)      A provider of water, electricity or gas must comply with a
                       utilities order, despite any other law or agreement or arrangement
                       applying to the provision of water, electricity or gas to the
                       premises, or part of premises, concerned.
              (9)      No compensation is payable to any person for any damage or
                       other loss suffered by that person because of the making or
                       operation of a utilities order or this section.
             (10)      A provider of water, electricity or gas must not, during a period
                       that a utilities order is in force in relation to premises, or part of
                       premises, require payment for the provision of water, electricity
                       or gas services to the premises or part of premises (other than
                       services related to the implementation of the order).
             (11)      The Land and Environment Court or a Local Court may make a
                       utilities order when it determines an appeal against a brothel
                       closure order, if subsections (4) and (5) have been complied with.
[3]   Section 124AB
      Insert after section 124AA:
  124AB      Proceedings relating to use of premises as brothel
              (1)      Application
                       This section applies to proceedings before the Court to remedy or
                       restrain a breach of this Act in relation to the use of premises as
                       a brothel. Subsections (5) and (6) extend to any such proceedings
                       in relation to all brothels within the meaning of the Restricted
                       Premises Act 1943.
              (2)      Adjournments to obtain consent only in exceptional
                       circumstances
                       The Court may not adjourn the proceedings under section 124 (3)
                       unless it is of the opinion that 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


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Brothels Legislation Amendment Bill 2007

Amendment of Environmental Planning and Assessment Act 1979                    Schedule 1




                    development application has been made, is not by itself an
                    exceptional circumstance.
             (3)    Time for making development application limited to 10 days
                    If the Court adjourns the proceedings under section 124 (3), the
                    proceedings must be brought back before the Court if a
                    development application is not made within 10 working days of
                    the adjournment.
             (4)    Only one adjournment
                    The Court may make only one adjournment under section 124 (3)
                    of particular proceedings.
             (5)    Finding may be made on circumstantial evidence
                    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.
             (6)    However, the presence in any premises of articles or equipment
                    that facilitate or encourage safe sex practices does not of itself
                    constitute evidence of any kind that the premises are used as a
                    brothel.
                    Note. Examples of circumstantial evidence include (but are not limited
                    to) the following:
                     (a)    evidence relating to persons entering and leaving the premises
                            (including number, gender and frequency) that is consistent with
                            the use of the premises for prostitution,
                     (b)    evidence of appointments with persons at the premises for the
                            purposes of prostitution that are made through the use of
                            telephone numbers or other contact details that are publicly
                            advertised,
                     (c)    evidence of information in books and accounts that is consistent
                            with the use of the premises for prostitution,
                     (d)    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.

[4]   Section 126 Penalties
      Insert after section 126 (3):
             (4)    In determining the sentence for a person who has previously been
                    found guilty of an offence that arises from a failure to comply
                    with a brothel closure order within the meaning of section 121ZR
                    or the unlawful use of premises for the purposes of a brothel, a



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                Brothels Legislation Amendment Bill 2007

Schedule 1      Amendment of Environmental Planning and Assessment Act 1979




                   court must take into account the fact of the previous offence as an
                   aggravating factor and is, accordingly, to impose a higher
                   sentence than it would otherwise impose.
[5]   Schedule 6 Savings, transitional and other provisions
      Insert at the end of clause 1 (1):
                   Brothels Legislation Amendment Act 2007




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Brothels Legislation Amendment Bill 2007

Amendment of Restricted Premises Act 1943                              Schedule 2




Schedule 2             Amendment of Restricted Premises Act
                       1943
                                                                          (Section 4)
[1]   Section 2 Definitions
      Omit the definition of brothel. Insert instead:
                  brothel means premises:
                   (a) habitually used for the purposes of prostitution, or
                   (b) that have been used for the purposes of prostitution and are
                         likely to be used again for that purpose, or
                   (c) that have been expressly or implicitly:
                           (i) advertised (whether by advertisements in or on the
                                premises, newspapers, directories or the internet or
                                by other means), or
                          (ii) represented,
                         as being used for the purposes of prostitution, and that are
                         likely to be used for the purposes of prostitution.
                  Premises may constitute a brothel even though used by only one
                  prostitute for the purposes of prostitution.
[2]   Section 2
      Insert in alphabetical order:
                    related sex uses means the following:
                    (a) the use of premises for the provision of sexual acts or
                           sexual services in exchange for payment,
                    (b) the use of premises for the provision of massage services
                           (other than genuine remedial or therapeutic massage
                           services) in exchange for payment,
                    (c) the use of premises for the provision of adult entertainment
                           involving nudity, indecent acts or sexual activity if the
                           entertainment is provided in exchange for payment or if
                           the entertainment is ancillary to the provision of other
                           goods or services.




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                    Brothels Legislation Amendment Bill 2007

Schedule 2          Amendment of Restricted Premises Act 1943




[3]   Section 17 Application to Land and Environment Court for premises not
      to be used as brothel
      Insert after section 17 (1):
             (1A)      An order under subsection (1) may also provide that the owner or
                       occupier of the premises is not to use or allow the use of the
                       premises for specified related sex uses.
             (1B)      The Land and Environment Court may, if it makes an order under
                       subsection (1), also make an order suspending or varying the
                       operation, for a period not exceeding 6 months, of any
                       development consent relating to the use of the premises for the
                       purpose of a brothel or the use of the premises for specified
                       related sex uses.
             (1C)      An order under subsection (1B) has effect despite any provision
                       of the Environmental Planning and Assessment Act 1979 or any
                       instrument made under that Act.
[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.
[5]   Section 17 (3)
      Omit "complaints". Insert instead "complaint or complaints".
[6]   Section 17 (3) (d)
      Insert at the end of section 17 (3) (c):
                           , or
                     (d) persons who work in the vicinity of the brothel or persons
                           who regularly use, or whose children regularly use,
                           facilities in the vicinity of the brothel.
[7]   Section 17 (5)
      Omit "this section". Insert instead "subsection (1)".




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Brothels Legislation Amendment Bill 2007

Amendment of Restricted Premises Act 1943                                 Schedule 2




 [8]   Section 17 (5A)
       Insert after section 17 (5):
            (5A)    In making an order under subsection (1B), the Land and
                    Environment Court is to take into consideration only the
                    following:
                     (a) the likelihood that the premises will continue to be used for
                          a brothel or will be used for related sex uses (whether or
                          not by a person who is subject to the order under
                          subsection (1)),
                    (b) having regard to the kinds of matters considered before
                          granting the order under subsection (1), the effect on the
                          amenity of the neighbourhood of any such use or uses,
                     (c) the permitted uses for the land on which the premises are
                          situated under any applicable environmental planning
                          instruments or approval under the Environmental
                          Planning and Assessment Act 1979,
                    (d) any other matter that the Land and Environment Court
                          considers is relevant.
 [9]   Section 17 (7)
       Omit the subsection. Insert instead:
              (7)   In this section:
                    church, hospital and school have the same meanings as in the
                    Summary Offences Act 1988.
                    development consent has the same meaning as it has in Division
                    2A of Part 6 of the Environmental Planning and Assessment Act
                    1979.
                    local council includes a person or body that:
                     (a) exercises planning or regulatory functions in respect of the
                           area in which premises are situated, and
                    (b) is authorised by the Minister administering the
                           Environmental Planning and Assessment Act 1979 to
                           exercise the functions of a local council under this section.
[10]   Section 17A Evidence of use of premises as brothel
       Omit section 17A (1) and (2). Insert instead:
              (1)   This section applies to proceedings before the Land and
                    Environment Court on an application under section 17 for
                    premises not to be used as a brothel.




                                                                              Page 11
                 Brothels Legislation Amendment Bill 2007

Schedule 2          Amendment of Restricted Premises Act 1943




              (2)      In any proceedings to which this section applies:
                        (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.
[11]   Section 17A, note
       Omit paragraph (b).
[12]   Section 17A, note
       Omit "arrangement of the premises, or of the furniture" from paragraph (e).
       Insert instead "arrangement of, or other matters relating to, the premises or the
       furniture".
[13]   Schedule 1 Savings, transitional and other provisions
       Insert at the end of clause 1 (1):
                       Brothels Legislation Amendment Act 2007




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Brothels Legislation Amendment Bill 2007

Amendment of Land and Environment Court Act 1979               Schedule 3




Schedule 3             Amendment of Land and Environment
                       Court Act 1979
                                                                 (Section 5)
      Section 17 Class 1--environmental planning and protection appeals
      Insert ", 121ZS" after "121ZM" in section 17 (d).




                                                                  Page 13


 


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