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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
CIV 2005-419-001689
BETWEEN JULIE ANN CONLEY
Applicant
AND HAMILTON CITY COUNCIL
Respondent
Hearing:
15 - 16 May 2006
Appearances: G J X McCoy QC and G O'Brien for the applicant
P M Lang and D Thresher for the
respondent
Judgment: 19 July 2006
JUDGMENT OF ELLEN FRANCE J
Deliver y time in accordance with
Rule 540(4): Wednesday 19 July 2006 at 2:15pm
Table of contents
Para No
Introduction
[1]
Issues [6]
Statutory
scheme [8]
The Bylaw
[23]
The applicant's case
[ 29]
(i) Consistency with legislation [38]
(ii) Effect on rights
[45]
(iii) Existing use rights
[49]
(iv) Right to work [50]
(v) Regulation
not prohibition [51]
(vi) The effect of the Bylaw
[54]
Amendment of the Bylaw [77]
Costs
[78]
Result
[79]
CONLEY V HAMILTON CITY COUNCIL HC HAM CIV 2005-419-001689 19 July 2006
Introduction
[1] The applicant, Julie Conley, runs an escort agency providing commercial
sexual services from her home in Marama Street
in Hamilton. She wants to continue
to operate from those premises but she is not able to do so because of the Prostitution
Bylaw
2004. The Bylaw was made by the respondent, the Hamilton City Council,
under s 14 of the Prostitution Reform Act 2003 and the Local
Government Act 2002.
Section 14 gives the Council power to "regulate" the "location" of brothels.
[2] The Bylaw sets out
an area within the city in which brothels are permitted to
locate and provide commercial sexual services. The "Permitted
Brothel Area"
enco mpasses the main industrial and central city commercial areas. The suburban
areas of the city are outside of the
permitted area. In addition, the Bylaw prevents
brothels from being located within 100m of registered places of worship, schools,
early childhood centres, or marae (these are referred to in the Bylaw as "sensitive
sites").
[3] The applicant's premises
are approximately 150m outside of the permitted
area. She challenges aspects of the Bylaw on three grounds:
(a) unreasonableness
or disproportionality;
(b) repugnancy; and
(c) unlawful interference with her rights to work and the
human rights of
sex workers as recognised in s 3 of the Prostitution Reform Act.
[4] Two, similar, bylaws
made by the Christchurch and Auckland City Councils
have been successfully challenged in the High Court. The applicant says this
Bylaw
should similarly be quashed.
[5] The Council says the Bylaw is valid. Alternatively, the Council asks the
Court to
amend the Bylaw to allow for small owner-operated brothels to operate in
resident ial areas.
Issues
[6] In Willowford Family Trust v Christchurch City Council [2006] 1 NZLR 791
Panckhurst J concluded that the Christchurch equivalent to the Bylaw should be
quashed. Heath J took the same view in relation to
the Auckland equivalent in
JB International Ltd v Auckland City Council (HC AK CIV 2005-404-2214,
14 March 2006).
[7] I have
the advantage, then, of two recent decisions from this Court on similar
bylaws. With respect, both of those decisions apply orthodox
principles as to when a
bylaw will be unreasonable, repugnant or ultra vires. I do not need to go back over
those principles. On
that approach, the issues as I see it require a consideration of
the Act and its effect, and of the Bylaw and its effect. The question
is then whether
applying the relevant principles, the applicant has shown the challenged parts of the
Bylaw are unreasonable, repugnant
or ultra vires.
Statutory scheme
[8] The Prostitution Reform Act 2003 has two purposes. The first is to
decriminalise prostitution and the second is to "create a framework" that does the
fo llo wing:
(a) safeguards the human
rights of sex workers and protects them from
exploitation:
(b) promotes the welfare and occupational health
and safety of sex workers:
(c) is conducive to public health:
(d) prohibits the use in prostitution of persons
under 18 years of age:
(e) implements certain other related reforms.
[9] The Act is in three parts. Part 1 deals
with various preliminary matters and
contains various definitions. Part 2 deals with commercial sexual services which are
defined
in the Act, essentially, as physical participation in sexual acts which are
provided for payment or other reward (s 4(1)).
Contracts for the provision of
commercial sexual services are not void (s 7). Operators of businesses of
prostitution
are required to adopt and promote safer sex practices. Importantly for
these proceedings, the definition of "operator" in s 5 of
the Act excludes sex workers
who work at a "small owner-operated brothel". A "small owner-operated brothel"
means a brothel:
(a) at which not more than 4 sex workers work; and
(b) where each of those sex workers retains control over his or her
individual earnings from prostitution carried out at the brothel. (s 4(1))
[10] In terms of s 9, both sex workers and
their clients are required to adopt safer
sex practices. There are various restrictions on advertisements for commercial
sexual
services which are set out in s 11.
[11] The next subpart of Part 2 is headed "Territorial authority may make
bylaws". In terms
of s 12, a territorial authority has power to 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. Section 12(2) provides that 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 is likely
to cause a
nuisance or serious offence to ordinary members of the public using the area or is
inco mpat ible with the existing character
or use of that area. Under s 12(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. Section 13(2) provides that a bylaw may
be made under s 12
even if, contrary to s 155(3) of the Local Government Act 2002, it is inconsistent
with the New Zealand Bill of
Rights Act 1990.
[12] It is necessary to set out in full s 14 as that is the key provision for this
applicat ion. Section 14
provides as follows:
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. (Section 145 of the Local
Government Act is the general bylaw-making power for territorial
authorities. Under that section,
bylaws can be made to protect the public
from nuisance, to promote etc public health, and to minimise the potential
for offensive behaviour in a public place.)
[13] Section 15 of the Act provides that when considering an application for a
resource consent under the Resource Management Act 1991 for a land use
concerning 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.
[14] Having considered these matters as well as those
matters it is required to
consider under the Resource Management Act, the territorial authority may grant or
refuse to grant a resource
consent or impose conditions on any resource consent
granted.
[15] Section 15(3) provides that subsection (1) does not limit
or affect the
operation of the RMA in any way and it may be over-ridden, with respect to
particular areas within a district, by the
provisions of a district plan or proposed
district plan.
[16] Protections for sex workers follow in ss 16 and 17. Similarly,
there are
protections for persons refusing to work as sex workers in s 18. Section 19 deals
with the application of the Immigration
Act 1987. There then follow a series of
provisio ns which prohibit the use in prostitution of persons under 18 years of age.
[17]
In terms of these proceedings, it is necessary to refer also to the next subpart
which sets out powers to enter and inspect compliance
with health and safety
requirements.
[18] Section 27 deals with the entry of homes and prohibits an inspector from
entering
a home under s 26 without the consent of an occupier or the authority of a
warrant.
[19] In terms of s 27(2) a warrant may be
issued to enter a home or part of a home
where the District Court Judge or other authorised person is satisfied that there are
reasonable
grounds for believing that:
(a) a business of prostitution is being carried on in the home; or
(b) the home or the
part of the home is the only practical means through
which to enter premises where a business of prostitution is being
carried on.
[20] The "business of prostitution" is defined to mean a business of providing or
arranging the provision
of, commercial sexual services (s 4(1)).
[21] Part 3 of the Act deals with operator certificates. Basically, every operator of
a business of prostitution, other than a company, must hold a certificate issued under
s 35 of the Act.
[22] Part 4 of the Act
deals with a number of miscellaneous provisions. In
particular, there is provision for a review of the operation of the
Act and the
establishment of a prostitution law review committee which is to undertake the
exercise (ss 42 and 43).
The Bylaw
[23] The process followed in developing the Bylaw was outlined by Paul Gower, a
Senior Policy Analyst with the Hamilton City Council.
Mr Gower explained that the
Council had a research company undertake interviews with various people on issues
facing the industry
and community in relation to the environment post the
Prostitution Reform legislation. A Council staff working group then prepared
an
options paper for the Council in June 2004. On 25 June 2004, the Council
considered various policy responses and adopted
a proposed Bylaw. In July 2004,
public consultation on the proposed Bylaw commenced and on 25 and 26 August
2004, the Commission
heard submissions on the proposed Bylaw, considered
options, and instructed staff to make amendments to the proposed Bylaw. The final
Bylaw was adopted on 21 September 2004 for commencement on 1 October 2004.
[24] The proposed Bylaw would have allowed individual private sex workers
working from their
homes and residences throughout the city provided they met
other criteria intended to limit effects on the surrounding community.
Larger
commercial brothels (parlour brothels) were only able to operate in a defined area of
the city, namely, the main
industrial and central city commercial areas. These
brothels were not to be located within 100m of registered places
of worship, schools,
early childhood centres, or marae.
[25] There was a specific exemption in the proposed Bylaw to allow the
applicant
to continue her business. This was part of the transitional arrangements in the
proposed Bylaw.
[26] The Prostitution
Bylaw 2004 as promulgated has the following objectives:
1. To support the purpose and intent of the Prostitution Reform
Act
2003.
2. To enable Commercial Sexual Service providers to operate within
Hamilton
City in a manner that both meets community demand for
services and addresses community concerns and sensitivities.
3. To allow the establishment of Brothels in areas where the effects
associated with the operation
can be readily controlled.
4. To limit the exposure of children and young people to commercial
sex
activities.
5. To control the establishment of signage associated with Brothels to
minimise community
harm of offence.
6. To control the soliciting of commercial sexual services in Hamilton.
[27] The Bylaw then provides
that brothels are permitted to locate and provide
commercial sexual services from premises located within the "Permitted Brothel
Area" indicated on the map. As I have noted, that Area comprises the CBD and the
cit y's main industrial areas.
[28] Location
within the Area is subject to other conditions in the Bylaw. There
are, for example, various provisions dealing with signage. In
addition, the Bylaw
provides that no brothel may be located within 100m in a straight line of any
sensit ive site. Sensitive sites
mean a school or licensed early childhood centre, a
place of worship, or a marae, identified as a sensitive site on a register maintained
by
the Council.
The applicant's case
[29] Against this background, I turn to consider the applicant's case. There is no
challenge
to that part of the Bylaw dealing with signage. The focus is on the
inabilit y of sex workers to operate in the suburbs.
Knight, "Brothels, bylaws,
prostitutes and proportionality" [2005] NZLJ 423 at 425 is critical of what the author
describes as a "reluctance" to "define with certainty the legal method for assessing
the substantive
merits of bylaws." However, in the present case the arguments in
relat ion to the three heads, unreasonableness, repugnancy and ultra
vires, overlap. I
agree with Heath J at [41] that the real issue is whether the Bylaw has been shown to
be invalid.
[30] The
applicant says, first, that the Bylaw is unreasonable because it is
inconsistent with the Prostitution Reform legislation. There
are several aspects to
this. The first aspect is that the applicant says that the Act means the Bylaw has to
recognise the special
features of small owner-operated brothels, that is, a home based
industry with their "natural habitat" being in the suburbs.
[31]
The second matter advanced in respect of the legislation is that the Bylaw
does not promote or safeguard the rights and dignity
of sex workers. Indeed, the
applicant says, the likely effect of the Bylaw is to create "red light zones" which are
ant ithet ical
to the personal autonomy and dignity of sex workers. In this way, the
applicant submits that the Bylaw perpetuates stereotypes about
sex workers which
have been overtaken by the legislation. Finally, under this head, the applicant says it
is not permissible in terms
of the legislation to use the Bylaw to restrain a lawful
business of which the Council disapproves.
[32] Second, the applicant
submits that the width and scope of the Bylaw make it
unreasonable. That is because the Bylaw effectively denies the operation of
a small
owner-operated brothel and in doing so is partial and unequal in its operation as
between types of brothel owners. It cannot
have been the intention, the applicant
says, to confine small owner-operated brothels to the areas of highest rents.
[33] Third,
the applicant says the Bylaw is unreasonable because of its effect on
the applicant's existing use rights. No reason or evidence
is advanced by the
Council for the change between the proposed Bylaw which would have protected the
applicant's current premises
and the Bylaw as promulgated.
[34] Next, in terms of unreasonableness, the applicant argues that the Bylaw is
unreasonable because
it is an unlawful interference on the right to work and on
freedo m of association as protected by s 17 of the New Zealand Bill of
Rights Act
1990. The same argument is made under the ultra vires head.
[35] Finally, on an unreasonableness or proportionality
basis, the applicant says
the Bylaw is disproportionate because it cuts across the rights of sex workers.
Further, it is said that
there is no lawful connection between the measures taken to
meet the legislative objectives and the Bylaw.
[36] As to the claim
the Bylaw is repugnant, the applicant emphasises the
Council's power is to regulate and not to prohibit. There is a substantive difference
between the power to prohibit signage in s 15 and the regulatory power in s 14.
[37] Similar arguments are also made under this
head about the exclusion of sex
workers from the suburbs. The applicant says the problem is demonstrated by the
internal language
of the Bylaw and, in particular by the stated objective of allowing
brothels in areas "where the effects associated with the operation
can be readily
controlled". That objective, the applicant says, is uncertain and unlawful.
(i) Consistency with legislation
[38] Taking first the arguments based on the effect of the Prostitution Reform
legislat ion. The view I take is that the Act
recognises that small owner-operated
brothels are a form of business which prostitution may take and so provision is made
for that
fact. It does not necessarily follow that small owner-operated brothels have
to be provided for in just the way that the applicant
and others may prefer. As
Mr Lang for the Council submits, there is nothing in the Act which links with any
part of a city or any
part of New Zealand having to be made available for the conduct
or provision of commercial sexual services. That is the answer also to the
applicant's complaint
that the Bylaw operates unequally as between different types
of brothel owners.
[39] I also agree with the submission for the
Council that the reference to small
owner-operated brothels is to ensure that those sex workers are not subjected to the
same regulatory
regime as applies to operators of other types of brothels. In this
sense, there is no dissonance between the legislative objectives
and the Bylaw.
[40] Both Panckhurst J and Heath J placed some reliance on the fact there was a
power to inspect a home as indicating
the fact that commercial sexual services will
be operated from homes. That is the approach relied on by the applicant in the
present
case. I prefer the analysis advanced by the Council which is that the power
of entry has to be construed as providing for the eventuality
a search of a home may
be necessary and no more than that.
[41] It is nonetheless inherent in the reference to small owner-operated
brothels in
the Act that Parliament envisages there will be some sex workers who choose to
operate in that way. Panckhurst J and
Heath J appear to go beyond that when they
describe the intention of the Act as recognising small owner-operated brothels "as a
constituent
part of the business of prostitution." (per Panckhurst J at [91]).
Certainly I agree, as does the Council, that the effect of
the Bylaw cannot be to
undermine the legislation and it is possible to get to the point where the approach to
small owner-operated
brothels does just that. As Panckhurst J observed, this is a
question of fact and degree and I come back to the evidence on that.
[42] The majority of the select committee considering the Bill considered control
of "undesirable" prostitution activity and
planning matters could be achieved through
the Resource Management Act 1991 and District Plans and that view appears to be
reflected
in s 15 of the Act (Justice and Law Reform Committee "Prostitution
Reform Bill Commentary" [2003] AJHR I 22A at 276) It is the
case, however,
that the Act does not expressly limit the basis on which the Council can "regulate"
locat ion. In this context,
the applicant challenges the Council's reliance on
communit y concerns as reflected in the objective dealing with the ability to
control
the effects of brothels. It is important in my view, as the Council says, that the
applicant does not challenge the restriction
against siting brothels within 100m of
sensit ive sites. The acknowledgement such a limit is permissible is a recognition of
the
width and scope of the Council's powers.
[43] Mr Gower did accept that it was possible parlour brothels could be controlled
wherever they were. But, at a practical level, the notion the effects of these activities
may give rise to difficulties in terms
of control in a suburban area is a commonsense
one. Mr Lang put it this way when he said it may not be possible, for example, for
a
ho meowner to move from a district to put some distance between a brothel and
his/her residence. This point should not be overstated
but I do not see the objective
as unlawful on its face.
[44] The distinction in the Act between the power to prohibit signage
and to
regulate location is not determinative either. It would not make sense to provide for
the prohibition of location. It is inevitable,
as the Council says, that in exercising the
power to regulate the Council will thereby prevent some locations from being
utilised.
(ii) Effect on rights
[45] I agree with Panckhurst J that the suggestion a "red light" district may form is
not substantiated.
Ms Healey accepted her evidence on this aspect was speculative.
The evidence is that six of the current brothels are close to the
city. There is no
suggest ion the current demand for services is not being met. Nor can it be said that
businesses cannot operate
at all outside of the main CBD. Ms Conley would have
been happy to take up premises in Frankton which are within the permitted area and
her inability to
do that had nothing to do with the Bylaw.
[46] As to the effect more generally on the dignity and autonomy of sex workers,
it
is helpful to go back to the purposes of the Act. The dual purposes reflect the
concept of decriminalisation as advocated by Tim
Barnett MP who promoted the
prostitution reform legislation. In the Committee debate on the Bill, (26 March
2003) 607 NZPD 4454 , Mr Barnett put it this way:
The concept of decriminalisation is simply that one looks at the activity,
identifies
the risks in that activity that are unique to it, and designs law that
deals with those risks. Then one opens up the activity
to all the other general
laws that exist in society. If we take the activity of prostitution as an
exa mple, we see
that certain things are almost unique to prostitution,
including the whole issue of safe sex, the coercion of the workers
by
ma nagers, offensive signage, and workers getting trapped in the industry
because of their convictions and because
of public attitudes to prostitution.
[47] As with other, lawful activities, there will be statutory powers which affect
the operation
of that lawful activity in some way.
[48] There is merit in Mr Lang's submission that the objective in s 3(a) of the Act,
that
is, to provide a framework which safeguards the human rights of sex workers
and protects them from exploitation, is reflected in
ss 16 and 17 of the Act. Those
sect ions prevent persons from inducing or compelling another person to perform
commercial sexual
services and protect the right to refuse to provide commercial
sexual services. Similarly, s 3(b) can be seen as reflected in ss
8 10 and in Part 3;
s 3(c) in ss 8 10; and s 3(d) in ss 20 23. In any event, as will be seen, I do not
consider that the evidence
establishes that the Bylaw undermines the legislation in
this respect.
(iii) Existing use rights
[49] In terms of the applicant's
reliance on existing use rights, I accept the
submissio ns for the Council that while Ms Conley's activities for a period post the
enactment of the legislation were legal, that does not establish any rights that
demand protection. It is relevant also that the
change to the Bylaw followed a proper
process albeit I agree with Mr McCoy that no particular explanation other than the
general
community response is given for taking out the provision which would have
preserved the applicant's own position. Finally, the Bylaw
did provide for brothels
in operation as at 26 August 2004 outside of the permitted area to have a maximum
of 12 months from the
date of the Bylaw becoming operative to relocate or cease
operation.
(iv) Right to work
[50] As to the interference with
the right to work and to freedom of association, a
right to regulate location will have an effect on the opportunity to work from
a
particular location. That is exactly what Parliament has provided for. In terms of the
freedo m of association, it is the place
of association only which is being affected,
again, as is envisaged by the nature of the bylaw making power.
(v) Regulation
not prohibition
[51] In reaching the conclusion they did, both Panckhurst J and Heath J applied
Municipal Corporation of the
City of Toronto v Virgo [1896] AC 88 (PC). In that
case, Lord Davey at 93, in delivering the advice of the Privy Council said a
dist inct ion was to be drawn between
the prohibition or prevention of a trade and its
regulat ion or governance. If the bylaw in that case, had had the practical effect
of
depriving the residents of buying or trading in a part of the city it amounted to a
prohibit ion not regulation.
[52] It follows
from my view of the legislation that I see the Council as having a
broad power. It is still necessary though to consider whether
what has occurred goes
beyo nd that power.
[53] On this aspect, the Council says the position in Hamilton is factually different
fro m that in Christchurch and Auckland. Here, the Council argues, the applicant
cannot say there is nowhere else to go. Rather,
her argument is that some sex
workers will have to go underground. The evidence does not support the claim small
owner-operated brothels
can only operate in the suburbs.
(vi) The effect of the Bylaw
[54] I turn to consider the evidence about the effect of the
Bylaw.
[55] Craig Sharman, a Strategic Planner with the Hamilton City Council explains
that the brothel permitted area contains
land subject to three different zonings under
the Hamilton City proposed district plan. These are the city centre zone, the
commercial service zone and the industrial zone. The city centre zone covers the
central core area of Hamilton and is principally
commercial in use. The commercial
service zone applies to the remainder of the central city commercial area that is not
within the
city centre zone and also applies to land within the brothel permitted area
in Frankton. The commercial service zone areas,
Mr Sharman says, are
characterised by "less intensive development pattern" than in the city centre zone.
There are a wide range of
environments including light industrial activities, service
businesses, warehousing, offices and retail outlets.
[56] The parts
of the brothel permitted area within the industrial zone are
described by Mr Sharman as "very diverse" in terms of development and
activities.
[57] Mr Gower explains that the CBD portion of the brothel permitted area
comprises approximately 103 hectares, some
60% of this area is further than 100m
fro m any sensitive site, although it is unclear whether that latter figure includes the
area
for parks.
[58] There are 301 residential units within the whole brothel permitted area of
which 63.8% (192) are not within 100m
of a sensitive site.
[59] The Frankton part of the brothel permitted area is approximately one-fifth of
the size of the CBD and
obviously gives an opportunity to diversify away from the
main CBD.
[60] The applicant gave evidence. Ms Conley owns and operates
Toni's Escort
Agency. Toni's is not a small owner -operated brothel. Ms Conley has operated her
establishment since 2004 and has
lived at that same address for the last two years.
The business itself has operated at those premises for the last 19 years. Ms Conley
emplo ys 12 people.
[61] Ms Conley gave evidence of the difficulties she had had in seeking
alternat ive accommodation once the
Bylaw was promulgated. She said that there
were about 20 different buildings that she looked at. She initially said that 17 of
those
had been rejected because of their location and three by the landlord. She did
however backtrack on that somewhat explaining that
in a number of cases the
problem would be with other planning matters, for example, the availability of
carparks.
[62] She
said she would have been happy to move anywhere. She had considered
the premises now taken by another brothel in Victoria Street.
She had missed out on
that on the first occasion by a few days when somebody else signed the lease. She
had a second opportunity
but again just missed out on getting the lease for that
property.
[63] Ms Conley sees the Bylaw as having the effect of sending
sex workers
underground and compromising their health and safety.
[64] She explains that for her business she did not want to be on the mainstream
having 50 to 100 clients
a day and "putting up with the riff raff" after midnight. She
said "we just want to be left alone and run a nice quiet escort service
which is our
ho me".
[65] The other evidence for the applicant came from Catherine Healy, the
National Co-ordinator of the
New Zealand Prostitutes Collective. The New Zealand
Prostitutes Collective is one of the constituent members of the committee set
up by
the Act to review the operation of the legislation.
[66] Ms Healy in her evidence expressed concern at the negative
impact of the
Bylaw on the health, safety and welfare of sex workers particularly those in small
owner-operated brothels. She said
there were a significant group of sex workers who
preferred to work for themselves from home. They did that to avoid exploitation
which can come from parlour/brothel owners.
[67] Hence, she said that the natural habitat for the small owner-operated brothel
was a quiet discreet operation from an apartment or area where there are a lot of
apartments in central areas or mixed zone areas.
That was the natural habitat
because of the need or desire for discretion, the wish to be able to manage one's own
business,
one's own clients and to control their circumstances.
[68] The advantages of working for themselves she identified as follows:
· Ability to decide which clients to accept;
· Ability to determine and control the nature of involvement with
the
clients;
· Ability to avoid possible abuse from clients by such control;
· Ability to avoid possible
exploitation by corporate brothel owners or
managers;
· Ability to choose the hours to be worked;
·
Ability to have control over earnings; and
· Easier transition out of the sex industry.
[69] In cross-examination, Ms
Healy accepted that private workers could achieve
the outcomes she had identified above regardless of location but maintained that,
depending on the location, that could make them more vulnerable. She agreed that if
up to four self-employed sex workers joined resources
in the brothel permitted area
they could achieve these outcomes. Ms Healy said she did not know of any
situations where commercial
premises are used by a sex worker on her own or
indeed with others. She accepted this was not to say it could not be done but did
not
know of any such situation despite a history of 18 years working with sex workers.
[70] Like Ms Conley, Ms Healy saw some
dangers in the possibility of sex
workers having to revert to massage parlours or underground work because of the
Bylaw. They would
be forced to do this in part because the rents in the CBD would
be beyond their means. She also saw risks of monopoly situations
developing and a
ghetto/red light district forming. Ms Healy in cross-examination said that the CBD
area was conducive to hosting
large number of sex workers if they could afford to
complete with the commercial value of the leases. She accepted she did not have
personal knowledge of Hamilton rents but did have a knowledge of commercial rents
based from the fact New Zealand Prostitutes Collective
rents properties around New
Zealand.
[71] Ms Healy accepted that some of the matters she raised about the effect of the
Bylaw
related to matters of commercial reality but said that other businesses have
greater other options than brothels.
[72] From this
evidence, it has to be said that it would be, as Mr Lang accepts, "a
challenge" to find a house in the permitted area that could
be used as a brothel. It is
not, however, impossible for a small owner-operated brothel to operate within the
permitted area. There
are some, although limited, residential units in the area (e.g.
apartments). While it appears small owner-operated brothels gravitate
to the
suburbs, it cannot be said they cannot or do not operate elsewhere. Further,
Ms Conley made the point that parlour brothels chose the CBD for reasons
of
"locat ion, location, location". That factor could also be relevant to small owner-
operated brothels.
[73] It is important
in this respect that Ms Healy accepted that the outcomes she
saw as desirable could be achieved in other locations. It is also relevant
that some of
Ms Healy's concerns did not reflect a particular knowledge of Hamilton and its
environs.
[74] There is, ultimately,
a difference in fact and degree between this case and that
in Virgo where the relevant streets that comprised the market were effectively
closed
to hawkers. The point is made by a comparison between the Hamilton situation and
that in Auckland. Of the latter, Heath J
was dealing with a case where "virtually no
brothels, ... small or large," (at [99]) were able to operate on the Auckland Isthmus.
[75] By contrast, the evidence here indicates there were six parlour brothels
operating in the CBD and adjoining residential
areas prior to enactment of the
Bylaw. One of the two brothels in a residential area has subsequently closed and an
addit ional one
set up in the CBD. That indicates the current demand is not high.
[76] In the end, I do not accept the evidence shows the Council
has prohibited
under the guise of regulation.
Amendment of the Bylaw
[77] My view on the Bylaw means that it is not necessary
to consider the
Council's alternative submission that I should amend the Bylaw. For completeness,
I record that I would not have
made the amendment sought. Essentially, I accept the
applicant's submissions that the amendment is outside the scope of the amending
power in s 12 of the Bylaws Act 1908.
Costs
[78] The parties agree that the appropriate costs categorisation is 2B. There
is no
reason why costs should not follow the event. The respondent is accordingly entitled
to costs on a 2B basis together with any
reasonable disbursements, the latter to be
fixed by the Registrar if necessary.
Result
[79] The application is dismissed.
________________________
Ellen France J
Solicitors/Counsel:
G O'Brien, PO Box 79, Te Awamutu
P Lang, PO Box
19010, Hamilton
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URL: http://www.nzlii.org/nz/cases/NZHC/2006/833.html