Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is 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 disorderly or unlawful brothels as follows:

(a) to enable orders under the Environmental Planning and Assessment Act 1979
(the EPA Act) in relation to the use of premises for brothels (brothel closure
orders) to also prohibit their use for other specified related sex uses and to
extend the categories of persons who may give such orders and to whom such
orders may be given,

(b) to enable brothel closure orders to commence after 5 working days,

(c) to make additional provision in respect of the enforcement of brothel closure
orders and other breaches relating to brothels, including limiting
adjournments, making it clear that the Land and Environment Court may rely
on circumstantial evidence rather than direct evidence of the use of premises
when determining whether there is a breach of a requirement relating to
brothels, enabling utilities orders to be made prohibiting the supply of water,
electricity or gas to brothel premises and increasing penalties for repeat
offenders,

(d) to expand the definition of a brothel that may be subject to an order under the
Restricted Premises Act 1943 (the RP Act) to include premises that have been
advertised or represented to be used for prostitution and are likely to be so used
for that purpose,

(e) to widen the basis on which an application for such an order may be made and
to extend the persons or bodies who may apply for an order,

(f) to make additional provision relating to orders under the RP Act that prohibit
premises from being used as brothels, including enabling such orders to also
prohibit the use of premises for specified related sex uses and making it clear
that the Land and Environment Court may rely on circumstantial evidence
rather than direct evidence of the use of premises when determining whether
to make an order,

(g) to include utilities orders in the relevant class of matters dealt with by the Land
and Environment Court,

(h) to make other minor consequential amendments.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the EPA Act
set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the RP Act set
out in Schedule 2.

Clause 5 is a formal provision that gives effect to the amendment to the Land and
Environment Court Act 1979 set out in Schedule 3.

Clause 6 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendment of Environmental Planning
and Assessment Act 1979
Schedule 1 [1] amends section 4 of the EPA Act to insert a definition of brothel.

Schedule 1 [2] inserts proposed sections 121ZR and 121ZS. Proposed section 121ZR
contains the following additional provisions relating to brothel closure orders:

(a) definitions of brothel closure order and related sex uses are inserted. A
brothel closure order is an order made by a council or other consent authority
to cease using premises as a brothel or in respect of the use of premises as a
brothel. Related sex uses include the use, in exchange for payment, of
premises to provide sexual acts or services or for massage services (other than
genuine remedial or therapeutic massage services) or for adult entertainment
involving nudity, indecent acts or sexual activity either in exchange for
payment or ancillary to the provision of other goods or services,

(b) natural justice provisions of the EPA Act relating to other orders do not apply,

(c) a brothel closure order may also prohibit the use of premises for specified
related sex uses,

(d) a brothel closure order may be made against a person apparently in control of
or managing, or assisting in the control or management of, a brothel,

(e) a brothel closure order is to specify a period of not less than 5 working days
for compliance,

(f) a person or body exercising planning or regulatory functions in the area in
which the premises are situated, and authorised by the Minister, may make a
brothel closure order (currently, this is limited to consent authorities),

(g) there is to be a defence to a prosecution for an offence arising from a failure to
comply with a brothel closure order if the defendant satisfies the court that (in
the case of an owner) all reasonable steps were taken to evict from the
premises the persons operating the brothel or using the premises for the
specified related sex uses or (in any case) to prevent the use of the premises
for the relevant purposes,

(h) regulations may be made conferring jurisdiction on Local Courts to hear
appeals against brothel closure orders and on the Land and Environment Court
to hear an appeal against an appeal decision by a Local Court.

Proposed section 121ZS enables a Local Court or the Land and Environment Court
to make an order (a utilities order) directing that a provider of water, electricity or
gas to premises cease to provide those services to the premises or part of the premises
(other than residential premises) if a brothel closure order is not complied with. Such
an order may only have effect for a maximum of 3 months. Notice of the proceedings
is to be given to affected persons who will also have a right to be heard and
represented in the proceedings. In deciding whether to make a utilities order, a court
is to take into consideration the effects of any failure to comply with the brothel
closure order, the uses of the premises, the impact on affected persons and whether
the health or safety of any person, or of the public, will be detrimentally affected.

Schedule 1 [3] inserts proposed section 124AB into the EPA Act. Proposed section
124AB contains the following additional provisions relating to proceedings in the
Land and Environment Court to remedy or restrain a breach of the EPA Act in
relation to the use of premises as a brothel:

(a) an adjournment to obtain a development consent for such a use may only be
given in exceptional circumstances,

(b) after any such adjournment, a matter must come back before the Court, if a
development application is not lodged within 10 working days and only one
such adjournment may be given,

(c) the Court may rely on circumstantial evidence that premises are used as a
brothel and need not rely on direct evidence.

Schedule 1 [4] amends section 126 of the EPA Act to provide that the fact that a
previous offence relating to a brothel closure order or the unlawful use of premises
as a brothel has been committed by a person is, in proceedings in relation to the use
of premises as a brothel, to be an aggravating factor that a court must consider when
sentencing the person.

Schedule 1 [5] amends Schedule 6 to the EPA Act to enable regulations containing
savings or transitional provisions to be made as a consequence of the enactment of
the proposed Act.

Schedule 2 Amendment of Restricted Premises Act
1943
Schedule 2 [1] amends section 2 of the RP Act to substitute the definition of brothel.

The new definition includes as brothels premises that have been advertised or
represented to be brothels and that are likely to be used for the purposes of
prostitution. Schedule 2 [11] makes a consequential amendment.

Schedule 2 [2] amends section 2 of the RP Act to insert a definition of related sex
uses.

Schedule 2 [3] amends section 17 of the RP Act to enable the Land and Environment
Court to also prohibit the use of premises for specified related sex uses when making
an order prohibiting the use of the premises as a brothel. The section is also amended
to enable the Land and Environment Court, when it makes an order prohibiting the
use of premises for a brothel, to suspend or vary, for a period not exceeding 6 months,
a development consent relating to the use of the premises for such purposes. A
development consent is defined to include an approval under Part 3A of the EPA Act
(see Schedule 2 [9]). Schedule 2 [7] makes a consequential amendment.

Schedule 2 [4] amends section 17 of the RP Act to enable a local council to make an
application for an order under that section if one or more complaints have been made
that the council reasonably believes warrant the making of the application. Currently,
a council must have received sufficient complaints to warrant the making of the
order. Schedule 2 [5] makes a consequential amendment.

Schedule 2 [6] amends section 17 of the RP Act to enable a local council to make an
application for an order under that section on the basis of a complaint made by
persons who work in the vicinity of the premises concerned or persons who regularly
use, or whose children regularly use, facilities in the vicinity of the brothel.

Schedule 2 [8] amends section 17 of the RP Act to provide for the matters that the
Land and Environment Court is to take into account when it makes an order under
that section to suspend or vary, for a period not exceeding 6 months, a development
consent.

Schedule 2 [9] amends section 17 of the RP Act to insert a definition of development
consent, and a definition of local council so as to enable planning or regulatory
authorities authorised by the Minister for Planning to apply for orders under that
section and makes other consequential amendments.

Schedule 2 [10] amends section 17A of the RP Act to make a consequential
amendment and to make it clear that the Land and Environment Court may rely on
circumstantial evidence, and is not required to rely on direct evidence, to make a
finding that particular premises are used as a brothel.

Schedule 2 [12] amends the examples of circumstantial evidence that premises are
used as a brothel set out in the note to section 17A of the RP Act to include other
matters relating to furniture, equipment or articles in the premises, in addition to the
arrangement of such things.

Schedule 2 [13] amends Schedule 1 to the RP Act to enable regulations containing
savings or transitional provisions to be made as a consequence of the enactment of
the proposed Act.

Schedule 3 Amendment of Land and Environment
Court Act 1979
The Schedule amends the Land and Environment Court Act 1979 to include
applications for utility orders in Class 1 of the matters dealt with by the Land and
Environment Court.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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