2 May 2010

Schools, brothels and bylaws

Below are some media comments about the (inaccurate) claims of a loop-hole in the Prostitution Reform Act and the inability to impose proximity controls on brothels in bylaws:

NZ Herald:

Brothel could be removed lawfully - expert
By Michael Dickison 2:26 PM Thursday Apr 29, 2010

A council could regulate the location of brothels as long as it did not take unreasonably aggressive action, a law expert has said. A law expert says Waitakere local politicians are wrong to think they cannot lawfully help a school that wants removed a brothel set up across the street.

Henderson Intermediate School is up in arms after a four-person brothel opened nearby, with its board of trustees chairman urging "leadership" and "common sense" from the Waitakere City Council.

But Deputy Mayor Penny Hulse said yesterday the council could not remove the brothel because she had been advised that such a bylaw would be found unlawful in court and end up costing ratepayers in legal fees.

Victoria University senior law lecturer Dean Knight has written "The (continuing) regulation of prostitution by local authorities" in Taking the crime out of sex work, to be published next month.

Mr Knight told nzherald.co.nz that Ms Hulse's position was not accurate.

There would be no problem preventing brothels from opening near sensitive sites like a school unless the council was being so restrictive as to effectively outlaw prostitution, Mr Knight said.

A council could regulate the location of brothels, even small owner-operated ones, as long as it was "not so aggressive as to be unreasonable", he said. In his book chapter, Mr Knight says that to date there have been three challenges to such bylaws, with two court rulings invalidating restrictions for being "too severe".

The latest court ruling, however, made by the Court of Appeal in 2008, upheld a Hamilton bylaw prohibiting brothels within 100m of a school, church or marae.

The ruling in favour of the restrictions came after a 12-person brothel challenged them.

The legal situation remained "uncertain", even after a review of legislation in 2008, because how restrictive a council could be depended on specific local conditions, Mr Knight said.

The school's board of trustees chairman, Ron Crawford, said yesterday he had been contacted by many people disgusted at the situation and was confused to be told nothing could be done - especially since Rodney District Council has a bylaw preventing a brothel from opening near a school.

Rodney's bylaw prohibits a brothel from operating within 200m of a school, pre-school or church.

It also disallows neon signs and "sexually explicit" or "lewd" imagery outside brothels.

A spokesman for Rodney District Council said the council had amended the bylaw in December last year to comply with legislation and was confident it would stand up in court.

Radio NZ National (Morning Report):

- Legal expert says brothels can be kept away from schools
A legal expert says an Auckland school's anger at a brothel being set up across the road could have been avoided had an appropriate by-law been in place. (duration: 4′55″)

1 comment:

Brooke Johnson said...

The purpose of this part of the bylaw is to regulate the location of brothels, and to control signage advertising brothels and other commercial sex premises.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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