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This is a Bill, not an Act. For current law, see the Acts databases.
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(1) This Act is repealed on the day following the day on which all of the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 121G121K.
Note. Sections 121G121K 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.
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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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