Submission re Draft Brothels Bylaws Amendment 2008

Submission to Upper Hutt City Council dated 8 December 2008

Background

The Society strongly opposed the Prostitution Reform Bill when it came before the Justice and Electoral Select Committee following its first reading in parliament in October 2000. It made both written and oral submissions to the committee and was one of the leading opponents of the bill. The Prostitution Reform Act 2005 (PRA) was passed by parliament on 26 June 2003 by a majority of only one vote (there was one abstention).

A number of Society executive members addressed the Upper Hutt City Council when it first embarked on a consultation process that led to the current bylaws governing the operation of brothels in the district. The Society strongly supported Mayor Wayne Guppy JP and his councillors who worked towards restrictions being imposed to limit the operation of brothels within the CBD and residential areas.

The Society, having carefully examined the latest proposals relating to changes to these bylaws affecting brothel placement and operation, strongly opposes some of the proposed changes to the current bylaws. It points out that since they were adopted as law there have been no applications by those wanting brothels in the CBD, as allowed under the Local Government Act 2002 (LGA), to have these bylaws challenged on the basis that they are unreasonable.

In the Society’s view the Council should accept that it has the strong support of the majority of Upper Hutt residents in retaining its current bylaws.

Many businesses which are excluded from operating within the CBD because of public nuisance factors etc. would love to have a prominent position within this Upper Hutt City CBD zone to promote their trade. The National Co-ordinator of the New Zealand NZ Prostitutes’ Collective (NZPC), Ms Catherine Healy, and her supporters, are determined to have prostitution normalised in this country and treated like any other business by Upper Hutt City Councillors. NZPC demands that territorial authorities like the UHCC create bylaws that allow for brothels to operate within its CBD, even though the public nuisance factors etc associated with such businesses have been recognised in the PRA and authority has been vested in territorial authorities (councils) using the Resource Management Act 1991 (RMA) and LGA, to enact bylaws controlling such operations within their districts.

The PRA itself imposes restrictions under the New Zealand Immigration Act on those coming to New Zealand who intend to invest in or be engaged in prostitution industry (they cannot obtain visas). It is thoroughly consistent with this approach for Councils to exercise their jurisdictional rights to place restrictions on the trade where public nuisance factors, health and safety issues etc can be demonstrated (see below).

It is a violation of the rights of Upper Hutt parents and caregivers to have to re-route their children and young persons when they leave home to attend schools, youth groups and church activities, so as to avoid passing by brothels operating in the CBD and residential areas. The Justice and Electoral select committee was presented with considerable evidence highlighting the public nuisance factors associated with such brothels operating near churches and schools (discarded condoms, criminal activity etc).

Signage

Under s 12 of the PRA, territorial authorities are given powers to regulate signage relating to brothels and sexual services within the CBD and elsewhere in the district.

S 12 Bylaws controlling signage advertising commercial sexual services

(1) A territorial authority may make bylaws for its district that prohibit or regulate signage that is in, or is visible from, a public place, and that advertises commercial sexual services.

(2) Bylaws may be made under this section only if the territorial authority is satisfied that the bylaw is necessary to prevent the public display of signage that—

(a) is likely to cause a nuisance or serious offence to ordinary members of the public using the area; or

(b) is incompatible with the existing character or use of that area.

(3) Bylaws made under this section may prohibit or regulate signage in any terms, including (without limitation) by imposing restrictions on the content, form, or amount of signage on display.

(4) Parts 8 and 9 of the Local Government Act 2002 (which are about, among other things, the enforcement of bylaws and penalties for their breach) apply to a bylaw made under this section as if the bylaw had been made under section 145 of that Act.

This empowerment entrusted to Councils under the PRA recognises the public offence aspect associated with an ‘industry’ that is morally abhorrent to a significant number New Zealanders (56% of the 221 submissions to the select committee on the PR Bill, opposed it).

We repeat … no reasonable case has been presented by the prostitution lobby showing why the current bylaws in Upper Hutt are not justified. Instead of using the legal avenues allowed for under the Local Government Act the prostitution lobby has done nothing.

The Resource Management Act (RMA)

The RMA empowers the Council to make decisions on brothel placements etc. that recognises the public offence aspect associated with an ‘industry’ that is morally abhorrent to a significant number New Zealand.

Prostitution Reform Act 2003 No 28 (as at 03 September 2007), Public Act

http://www.legislation.govt.nz/act/public/2003/0028/latest/DLM197864.html

Resource consents in relation to businesses of prostitution

· (1) When considering an application for a resource consent under the Resource Management Act 1991 for a land use relating to a business of prostitution, a territorial authority must have regard to whether the business of prostitution—

(a) is likely to cause a nuisance or serious offence to ordinary members of the public using the area in which the land is situated; or

(b) is incompatible with the existing character or use of the area in which the land is situated.

(2) Having considered the matters in subsection (1)(a) and (b) as well as the matters it is required to consider under the Resource Management Act 1991, the territorial authority may, in accordance with sections 104A to 104D of that Act, grant or refuse to grant a resource consent, or, in accordance with section 108 of that Act, impose conditions on any resource consent granted.

(3) Subsection (1) does not limit or affect the operation of the Resource Management Act 1991 in any way, and it may be overridden, with respect to particular areas within a district, by the provisions of a district plan or proposed district plan.

13 Procedure for making bylaws

(1) A bylaw made under section 12 must be made in the same manner in all respects as if it were a bylaw made under the Local Government Act 2002.

(2) Despite subsection (1), a bylaw may be made under section 12 even if, contrary to section 155(3) of the Local Government Act 2002, it is inconsistent with the New Zealand Bill of Rights Act 1990.

14 Bylaws regulating location of brothels

Without limiting section 145 of the Local Government Act 2002, a territorial authority may make bylaws for its district under section 146 of that Act for the purpose of regulating the location of brothels.

The PRA recognises that councils have a right to enact bylaws that safeguard the rights of the general public: protecting them from nuisance and maintaining public health and safety. It is an indisputable fact the prostitution is linked to criminal activity including drug dealing, gangs, and many forms of vice. It is exploitative of women and breeds an environment that destroys families and relationships.

Local Government Act 2002 No 84 (as at 01 November 2008), Public Act146 Specific bylaw-making powers of territorial authorities

145 General bylaw-making power for territorial authorities

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

(a) protecting the public from nuisance:

(b) protecting, promoting, and maintaining public health and safety:

(c) minimising the potential for offensive behaviour in public places.

Without limiting section 145, a territorial authority may make bylaws for its district for the purposes—

(a) of regulating 1 or more of the following:

(i) on-site wastewater disposal systems:

(ii) waste management:

(iii) trade wastes:

(iv) solid wastes:

(v) keeping of animals, bees, and poultry:

(vi) trading in public places:

The Society strongly implores the Upper City Council to take a principled stand against the tiny minority of individuals whose motivation to enhance, normalise and promote their sordid industry – runs counter to the public good. The current bylaws have worked well. Those wanting to operate brothels have had the opportunity to purchase suitable land within the Upper Hutt CBD (eg Alexander Road) that has been for sale for some years, in order to establish brothels and then make application under the RMA to operate in line with current bylaws. They have chosen not to.

By way of analogy …. In the past Councils had hydatid dosing strips confined to areas within the district that took account of public nuisance factors (barking dogs, excrement etc), health concerns (transmitted diseases, faecal contamination. etc.). The prostitution ‘industry’ as we informed the Justice and Electoral select committee some years ago, is like a public cancer. Its operations can be compared to a hydatid-dosing strip in terms of public nuisance etc. It should not be encouraged but in our society as a Main Street activity. Unfortunately it is a necessary evil that we have to tolerate and must control. The PRA recognises that councils have every right to severely curtail prostitution activities just as the Immigration department is likewise empowered and to control its growth. The passage and formulation of the PRA took some account the views of the majority of citizens who opposed it.

Comments on Specific details of the Draft Brothels Bylaw 2008

Clause 7.1 has the effect of negating ALL of clause 4 including Clause 4.1(d) because 7.1 permits “one resident sex worker [male or female] per dwelling in Residential Zones and within 100 metres of the sites listed in Clause 4.1(d)” (The current bylaws allow for an exclusion zone of 200 metres).

These sites where a “brothel” involving “one resident sex worker” is permitted as close as next door under the proposed draft changes are:

i. Any site zoned Residential; or

ii. A school; or

iii. Kindergarten

iv. A play centre; or

v. A pre- or after-school care centre

vi. A park

vii. Place of worship

viii. Retirement village or rest home

ix. Civic buildings

The vast majority of Upper Hutt residents will not accept a council legally permitting a brothel to operate next door (<100m) to an agency with the responsibility of young children, or catering for the specific needs of children – such as a school, kindergarten, church, childrens’ playground etc. A number of submissions to the Justice and Electoral select committee that considered the Prostitution Reform Bill documented the fact that the environment around a brothel is often rendered a health hazard due to discarded condoms and sexual devices and needles etc. linked to prostitution. The public nuisance created by largely male clients, some in a drunken state, shuffling towards or loitering around the entry and exit door to a brothel, creates a serious public nuisance factor and may in some cases attract criminal elements.

Clause 7.1 also has the effect of negating Clauses 4.1(a-c) which prevent the establishment of a brothel that is located “within a Residential Zone [a]; or [b] In Main Street or ground floor premises within the CBD; or [c] in any “gang” building.

Many gang headquarters or operating bases featured in the media appear to be private residences that have been modified to accommodate extended family/whanau. Under the proposed change to the Brothels Bylaw found in clause 7.1, it would be possible for a sex worker to be legally permitted to operate from within a “gang” dwelling. Furthermore, hostel owners/managers – medium-term and long-term tenants in residential areas would be entitled to allow one person to operate as an independent sex-worker provided they could establish that the dwelling they resided in was their “residence”. If more than one worked from this base, that person might never be aware that others offering sexual services from within the same establishment.

The Council’s ‘strategy’ to make provision in its amended Brothel Bylaws 2008 for more relaxation in the controls over prostitution, appears to be legally flawed. It relies on an artificial and highly questionable distinction it creates between the definition of a “brothel” as defined in the PRA and its own narrower ‘category’ of one person sexual services operation. However, the PRA recognises only one subcategory under the category of brothel – that of the SOB – consisting of up to four independent sex workers. Therefore, under the PRA – a single independent sex worker runs a brothel by definition. She or he, cannot escape his/her legal obligations under the PRA just because they work alone. It appears that the Council has engaged in a semantic manoevre to try and circumvent the law by trying to treat individual independent sex workers differently to those who work in a cluster (SOB) of four or less.

The idea that an exclusion zone of 100 metres (reduced from 200 metres) should apply to a SOB involving 2-4 independent working from one dwelling, in relation to a church, playground or other sites listed in s. 4.1(d), but NOT apply to an one independent sex worker, is bizarre! On what basis can the Council exhibit such a level of unjustified discrimination when both types of brothels are defined in the PRA as “SOBs”. The Council will face endless litigation from disgruntled SOB members involving 2-4 members if it goes ahead with the proposed change to the bylaw that clearly favours the single independent sex worker. Is it reasonable for he Council to show such blatant discrimination against a group (2-4) of independent sex workers?

The Council’s current by-laws are even-handed and the exclusion zone of 200 metres is realistic and perfectly justifiable in a free and democratic society that seeks to preserve and uphold the public good. They should be left alone in this regard. Under the current bylaw brothels are NOT prohibited from the Uper Hutt CBD (as noted Alexander Road is a suitable location for them).

The Society is opposed to any brothel operating in the CBD, whether it is located upstairs or on ground floor level, in cases where its location falls closer than 200 metres from the sites designated under 4.1(d). The Council would be acting against the public good to change this to 100 metres.

The nature of Upper Hutt City in terms of layout and its close proximity to residential areas does not lend itself to an infestation of brothels within the CBD. That’s just tough for those seeking to make money in this sordid industry that exploits women. Any brothel that is allowed within the CBD as a result of any misguided decision of the Council will be subject to massive scrutiny by Upper Hutt city rate-payers and residents. It will not survive and the Society (SPCS) will do all within its power to expose the reveal the true nature of this corrupt and sordid ‘industry’.

The Society fully supports the proposed changes to the bylaw that will allows the Upper Hutt City Council to remove signs in breach of the Bylaw.