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PROSTITUTION CONTROL AND OTHER MATTERS AMENDMENT BILL 2008

Prostitution Control and Other Matters
         Amendment Bill 2008

                          Introduction Print

               EXPLANATORY MEMORANDUM


                                   General
The Bill amends the Prostitution Control Act 1994 to introduce new
provisions regarding relatives of licensees or approved managers, create
offences relating to licensees being in effective control of a business and for
other purposes.
The Bill also amends the Second-Hand Dealers and Pawnbrokers Act
1989 to clarify the powers of police to obtain hard copy records from
electronic record-keeping systems under that Act, during general inspections.

                                Clause Notes

                       PART 1--PRELIMINARY
Clause 1    sets out the main purposes of the Bill, which are to amend the
            Prostitution Control Act 1994 to make provision for relatives of
            licensees or approved managers who are involved in the business
            to be considered associates for the purposes of the Act, to
            introduce offences that relate to a licensee being in effective
            control of a business, and to amend the Second-Hand Dealers
            and Pawnbrokers Act 1989 to allow for production of hard
            copies of electronic documents.

Clause 2    provides that the Bill comes into operation on the day after the
            day on which it receives the Royal Assent, aside from the
            sections which are to come into effect on proclamation, with
            default commencement dates of 1 March 2009 and 1 January
            2010.




561241                                 1      BILL LA INTRODUCTION 7/10/2008

 


 

PART 2--AMENDMENTS TO PROSTITUTION CONTROL ACT 1994 Clause 3 amends the definitions of brothel and escort agency, and inserts definitions of relative and uninvolved relative into section 3(1) of the Prostitution Control Act 1994. Clause 4 amends section 23(3)(b)(i) of the Prostitution Control Act 1994 to provide that small owner-operated businesses are associated if one of the businesses is carried on by a person who is a relative (other than an uninvolved relative) of a person carrying on another business. Clause 5 amends-- · section 37(2)(a) of the Prostitution Control Act 1994 to provide that, for the purposes of section 37(1)(d), a person is an associate of a second person if the first person is a relative (other than an uninvolved relative) of the second person; and · section 37(3)(a) of the Prostitution Control Act 1994 to provide that, for the purposes of sections 37(1)(d) or (e) a person is an associate of a body corporate if the person is a relative (other than an uninvolved relative) of a director or secretary of the body corporate. Clause 6 inserts into the Prostitution Control Act 1994-- · a new section 42, requiring a licensee to exercise effective control over a prostitution business by being regularly and usually in charge at the business, giving regular and substantial attendance at the business, properly controlling and supervising any approved manager, and taking reasonable steps to ensure that any approved manager, employee, independent contractor or other person connected with the business complies with the Prostitution Control Act 1994 and any other relevant laws; and · a new section 42A, making provision for arrangements when a licensee is absent from his or her prostitution business. 2

 


 

Clause 7 provides that the failure to exercise effective control over a prostitution business is grounds for automatic cancellation of a licence, and makes it an offence to fail (without reasonable excuse) to notify the Business Licensing Authority if any of the grounds for automatic cancellation of a licence (set out in section 47(1) of the Prostitution Control Act 1994) arises. Clause 8 amends section 48 of the Prostitution Control Act 1994 to allow the Tribunal to take into account the new offences regarding "effective control" of a business in disciplinary hearings against a licensee. Clause 9 amends section 48A(1)(c) of the Prostitution Control Act 1994 to increase the penalties that the Victorian Civil and Administrative Tribunal can impose, to 600 times the value of a penalty unit fixed by the Treasurer under section 5(3) of the Monetary Units Act 2004. Clause 10 amends-- · section 51(2)(a) of the Prostitution Control Act 1994 to provide that, for the purposes of section 51(1)(d), a person is an associate of another if he or she is the relative (other than uninvolved relative) of that person; and · section 51(3)(a) of the Prostitution Control Act 1994 to provide that, for the purposes of section 51(1)(d) or (e), a person is an associate of a body corporate if the person is a director or secretary of the body corporate or a relative (other than an uninvolved relative) of a director or secretary of the body corporate. Clause 11 amends section 63(1) of the Prostitution Control Act 1994 to provide that a member of the police force of the rank of senior sergeant and above may apply to a magistrate for the issue of a search warrant in relation to particular premises believed on reasonable grounds to be a prostitution business operating without a licence or in breach of a condition of a licence or without registration for an exemption from licensing requirements. Clause 12 inserts new sections 68(ga) and (gb) empowering the Governor in Council to make regulations prescribing offences to be infringement offences within the meaning of the Infringements Act 2006 and prescribing penalties (not exceeding 10 penalty units) for those offences. 3

 


 

Clause 13 amends sections 75(3)(a) and 75(3A)(a) of the Prostitution Control Act 1994 to extend the definition of who is an associate for the purposes of section 75, to include relatives other than uninvolved relatives. Clause 14 makes a number of minor amendments to the Prostitution Control Act 1994 to include applicable references to the Planning and Environment Act 1987. The amendments ensure that licensed prostitution service providers are not able to obtain permit conditions through applications for amendment that they would not be entitled to at permit application stage. Clause 15 amends-- · section 77(3)(a) of the Prostitution Control Act 1994 to extend the definition of who is an associate for the purposes of section 77(2), to include relatives other than uninvolved relatives; and · section 77(3A)(a) of the Prostitution Control Act 1994 to extend the definition of who is an associate for the purposes of sections 77(3)(c), (f) and (g) to include relatives other than uninvolved relatives. Clause 16 inserts a new section 85A into the Prostitution Control Act 1994 to clarify that in considering proscription applications the Magistrates' Court may take into account evidence of people entering and leaving premises consistent with the use of premises for prostitution services; evidence of appointments at the premises for what a reasonable person would believe were the purposes of prostitution services; advertising, where contact details are provided which can be linked to a premises offering prostitution services; documentation containing information which is consistent with the use of premises for prostitution services, and the arrangement of, or other matters relating to, the premises, including the presence of furniture or other items in the premises that is consistent with the use of the premises for prostitution services. The section makes an exception in relation to materials commonly used in safe sex practices, evidence of which the section provides is inadmissible in any proceeding under the Prostitution Control Act 1994 in which it is required to establish that sexual services were being offered or provided at a premises. 4

 


 

Clause 17 inserts a new section 89A into the Prostitution Control Act 1994, which empowers members of the police force and Consumer Affairs Victoria inspectors to serve infringement notices on people who they reasonably believe have committed any of the offences listed in the section. Clause 18 inserts new section 93, which provides that the amendments to offences in this Bill apply only to offences alleged to have been committed after the commencement of the amendments and that if an offence is alleged to have been committed over a time that includes a time before and after the commencement, such an offence is alleged to have been committed before commencement. Clause 19 adds to the list of offences set out at Schedule 3 to the Prostitution Control Act 1994. Section 47(1)(b) of the Prostitution Control Act 1994 provides that a licence is automatically cancelled if a licensee is convicted or found guilty of an offence set out in Schedule 3. The amendment adds additional offences under the Commonwealth Migration Act 1958 (allowing an unlawful non-citizen to work, allowing a non-citizen to work in breach of a visa condition, referring an unlawful non-citizen for work, and referring a non-citizen for work in breach of a visa condition) and the Commonwealth Criminal Code Act 1995 (slavery offences, sexual servitude offences, deceptive recruiting for sexual services, aggravated offences, trafficking in persons, aggravated offence of trafficking in persons, trafficking in children, domestic trafficking in persons, aggravated offence of domestic trafficking in persons, domestic trafficking in children, debt bondage, and aggravated debt bondage). PART 3--AMENDMENTS TO SECOND-HAND DEALERS AND PAWNBROKERS ACT 1989 Clause 20 inserts a definition of computer into the Second-Hand Dealers and Pawnbrokers Act 1989 for the purposes of new sections 25(2A) and 25(2B). Clause 21 inserts new subsections 25(2A) and (2B) into the Second-Hand Dealers and Pawnbrokers Act 1989. Subsection 25(2A) makes provision for police to require documents that are required to be produced under section 25(2)(c), electronically or in paper form produced from a computer. Subsection 25(2B) requires a person producing a document under subsection 25(2A) to also produce a statement verifying that the document provided is a true record of the original at the date of the original. The clause also increases 5

 


 

the penalty applicable for breaching section 25, from 20 to 50 penalty units. PART 4--REPEAL Clause 22 provides for the repeal of the amending Act on 1 January 2011. The repeal of the amending Act does not affect in any way the operation of the amendments made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984). 6

 


 

 


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