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Manukau City Council (Regulation of Prostitution in Specified Places) Bill (Consistent) (Sections 5, 14, 25(c)) [2010] NZBORARp 72 (23 September 2010)

Last Updated: 11 May 2020

Manukau City Council (Regulation of Prostitution in

Specified Places) Bill

23 September 2010

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

MANUKAU CITY COUNCIL (REGULATION OF PROSTITUTION IN SPECIFIED PLACES) BILL

1. We have considered whether the Manukau City Council (Regulation of Prostitution in

Specified Places) Bill (‘the Bill’) is consistent with the New Zealand Bill of Rights Act

1990 (‘Bill of Rights Act’). The Bill, a local Bill in the name of Hon George Hawkins, was introduced to the House of Representatives on 20 August 2010. The Bill received its first reading on 8 September 2010 and stands referred to the Local Government and Environment Committee.

2. This Bill provides for the Manukau City Council to control through bylaws the

locations where the business of prostitution or commercial sexual services may occur when that business or those services occur outside a brothel or small owner- operated brothel. Prostitution is currently regulated under the Prostitution Reform Act 2003 (‘the Act’).

3. While the Bill limits the right to freedom of expression and the right to be presumed innocent as affirmed in the Bill of Rights Act, we consider that these limits are justified under s 5 of that Act.

Freedom of expression

4. Section 14 of the Bill of Rights Act affirms the right to freedom of expression, which includes the freedom to seek, receive, and impart information and opinions of any kind and in any form. The right has been interpreted as including the right not to be compelled to say certain things or to provide certain information. [1] The right extends to conduct as well as silence and may apply irrespective of the content or form of the expression.

5. We note, taking into account the various domestic and overseas judicial pronouncements on the issue, a two-step inquiry has been adopted to determine whether an individual’s freedom of expression has been infringed. The first step involves a determination of whether a particular activity falls within the freedom of expression. The second step is to determine whether the purpose or effect of the proposed government action is to restrict that freedom. [2]

6. New Zealand and international jurisprudence supports the proposition that forms of expression that may be regarded as offensive or distasteful are nevertheless protected forms of expression. The Court of Appeal in Living Word Film Distributors v Human Rights Action Group [3] accepted the proposition that a fundamental aspect of the right to freedom of expression is that it extends to protecting all information and opinion, however offensive or distasteful.

7. The Supreme Court of Canada has held that certain types of communications associated with street prostitution are protected by the right to freedom of expression as set out in s 2(b) of the Canadian Charter of Rights and Freedoms. In the Prostitution Reference case, [4] the Court held that a law prohibiting communicative acts for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute was contrary to s 2(b) of the Charter. This was because the law prohibited persons from engaging in expression that had an economic purpose.

8. Clause 12 of the Bill makes it a criminal offence to conduct the business of prostitution or supply or receive any commercial sexual service or services at any time in a specified place in the district where this occurs outside the confines of a brothel or small owner-operated brothel. Clause 12 targets prostitution in specified public places, such as street prostitution.

9. We consider that cl 12 places a limit on freedom of expression.

Is the limit on the freedom of expression justified?

10. Where a provision is found to limit a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is justifiable in terms of s 5 of that Act. Following the guidance of the New Zealand Supreme Court decision of Hansen v R, the s 5 inquiry may be summarised as: [5]

a. does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?

b. If so, then:

i. is the limit rationally connected with the objective?

ii. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?

iii. is the limit in due proportion to the importance of the objective?

11. The purpose of cl 12 is to prevent activities or behaviour in a public place that are likely to cause a nuisance or serious offence to ordinary members of the public using the specific area, or because the activities or behaviour are incompatible with the existing character of that area. We consider that this purpose is significant and sufficient to justify some limit on the freedom of expression.

12. The requirement that prostitution and commercial sexual services not become a

social nuisance is already in the Act concerning resource consents in relation to businesses of prostitution. Section 15(1) of the Act provides:

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.

13. We note that the Bill does not affect the business of prostitution in private premises carried on in accordance with the provisions of the Act. Rather than banning prostitution completely, the Bill specifically targets the social nuisance arising from street prostitution in specified places.

14. We also note that commercial or economic expression is of less importance than political or artistic expression. The conduct targeted by the Bill, namely prostitution in specified public places, is commercial expression and we consider that it does not go to the core of the guarantee of freedom of expression. [6]

15. As stated above, we consider that cl 12 creates a limit on the right to freedom of expression under s 14 of the Bill of Rights Act. However, we consider that the limit on the right is justifiable because it relates to a significant and important objective and the limit is rationally and proportionately connected to that objective.

Right to be presumed innocent

16. Section 25(c) affirms the right to be presumed innocent until proved guilty. This means that an individual must not be convicted where reasonable doubt as to his or her guilt exists. The prosecution in criminal proceedings must therefore prove, beyond reasonable doubt, that the accused is guilty.

17. Reverse onus defences give rise to an issue of inconsistency with s 25(c) because the accused is required to prove (on the balance of probabilities) a defence to escape liability. [7] In other criminal proceedings an accused must merely raise a defence in an effort to create reasonable doubt. Where an accused is unable to prove the defence, then he or she could be convicted even though reasonable doubt exists as to his or her guilt.

18. Clause 12(2) creates a summary offence where a person conducts the business of

prostitution or receives commercial sexual services outside a brothel or small owner- operated brothel and inside a specified place in contravention of cl 12(1). Clause

12(2) also creates a statutory defence to the offence where a person can prove a reasonable excuse for contravention of that offence.

19. In addition, cl 14(5) creates a statutory defence of reasonable excuse in relation to failing to stop a vehicle when required to by a constable under cl 14(3)(1). We consider that reasonable excuse defences at cls 12(2) and 14(5) place a limit on the right to be presumed innocent.

Is the limit on the right to be presumed innocent justified?

20. In addition to the factors listed in paragraph 10, we consider the following factors are relevant in assessing whether the above reverse onus defences can be justified under s 5 of the Bill of Rights Act:

a) the nature and context of the conduct to be regulated

b) the ability of the defendant to exonerate themselves and the risk of conviction of an innocent person; and

c) the penalty level.

Is the objective sufficiently important and are the offences rationally connected to that objective?

21. The objective of the Bill appears to be to prohibit street prostitution in Manukau in areas where it is a nuisance, gives serious offence to members of the public or is incompatible with the character of the area.

22. While the general objective of the Bill is set out above, the specific objective of the defences at cls 12(2) and 14(5) is to place a greater onus on defendants to justify their conduct in the regulated profession of prostitution and providers of commercial sexual services. [8]

23. Creating an offence to enforce the law is rationally connected to the objective. The without reasonable excuse defence in cls 12(2) and 14(5) operate both to the benefit and detriment of the defendant. It benefits the defendant by providing the defence of reasonable excuse that is not available for true crimes. However, the onus is on the defendant to prove the excuse on the balance of probabilities and that their conduct is justified.

Is the impairment on the right greater than reasonably necessary and the limit in due proportion to the importance of the objective?

24. Since decriminalisation in 2003, prostitution and commercial sexual services have been regulated under the Prostitution Reform Act 2003 and bylaws promulgated by local authorities. The objective of the Bill is to provide for further regulation in Manukau City by limiting the locations in which prostitution may take place.

25. The courts have generally accepted that there is a distinction between "truly criminal offences" and offences that are considered to be in the realm of "public welfare regulatory offences". [9] Prostitution is decriminalised and regulated by the State. Placing an onus of proof on a defendant is generally considered to be more appropriate for regulatory offences. Those who choose to participate in regulated industries should expect to meet certain standards of behaviour. [10] Clauses 12 and

14 are intended to help enforce the obligations of the participants in prostitution

and commercial sexual services to ensure those activities do not cause a nuisance or serious offence to ordinary members of the public using the specified area, or because the activities or behaviour are incompatible with the existing character of the area.

26. Whether the defence turns on a particular matter that is peculiarly within the knowledge of the defendant is also a relevant consideration. [11] In such cases, it may be more appropriate for the defendant to explain why he or she took (or failed to take) a particular course of action in a regulated profession, industry or activity than it is for the Crown to prove the opposite.

27. In relation to cl 12, it is important to note that to arrest a person a constable must have good cause to suspect that a person is:

a. conducting the business of prostitution or supplying or receiving any commercial sexual service or services

b. in a specified place in the district; and

c. outside the confines of a brothel or a small owner-operated brothel.

28. If a prosecution follows, the Crown bears the burden of proving the above factual and corresponding mental elements. The defendant is only required to make out a defence once the Crown has proved all these elements beyond reasonable doubt. The reasonable excuse defence provision at cl 12(2) does not lessen the onus on the Crown to prove these elements at trial. A reasonable excuse defence often operates to the benefit of a defendant where he or she exercised due diligence to avoid committing the offence. The nature of the cl 12(2) offence together with the

removal of no signage as an excuse [12] will effectively preclude a reasonable excuse

defence to this offence.

29. The offence under cl 14(5) is in relation to failing to stop as soon as practicable when required to do so by a constable or failing to comply with a requirement made by a constable. In contrast to cl 12(2), there may be road safety reasons where a person has a reasonable excuse to not have complied with a constable under cl 14(5). These reasons would be peculiarly within the knowledge of the defendant.

30. As a general principle, reasonable excuse defences should carry penalties at the

lower end of the scale. Clauses 12(2) and 14(5) are summary offences with maximum fines of $2,000 and $1,000 respectively.

31. We consider that the reverse onus defences of the Bill appear to impair the right to be presumed innocent no more than is reasonably necessary for sufficient achievement of the objective of the reverse onus defences and the limit is in due proportion to the importance of that objective.

CONCLUSION

32. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

Footnotes:

1. RJR MacDonald v Attorney-General of Canada (1995) 127 DLR (4th) 1.

2. Ross v New Brunswick School District No 15 [1996] 1 SCR 825.

3. [2000] NZCA 179; [2000] 3 NZLR 570.

4. Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Manitoba), [1990] 1 SCR

1123 (“Prostitution Reference”).

5. The proportionality test under s 5 of the Bill of Rights Act, as applied in Hansen v R [2007] NZSC 7 [123], draws on the test articulated by the Canadian Supreme Court in R v Oakes [1986] 1 SCR 103, R v Edwards Books and Art Ltd [1986] 2 SCR 713 and R v

Chaulk [1990] 3 SCR 1303. See for example, Hansen, at [42] per Elias CJ; [64] and [79] per Blanchard J; [103], [104] and [120]-[138] per Tipping J; [185] and [217] per McGrath J; and [272] per Anderson J.

6. Prostitution Reference, paragraph 5 per Dickson CJ.

7. S 67(8) Summary Proceedings Act 1957.

8. Hansen, above n 2, at [69] per Tipping J.

9. Civil Aviation Authority v MacKenzie [1983] NZLR 78.

10. R v Wholesale Travel Group (1992) 84 DLR (4th) at 213.

11. See, for example, Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1, AC 264.

12. Clause 6(2).

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Manukau City Council (Regulation of Prostitution in Specified Places) Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.