Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Prostitution Amendment Bill 2001
PROSTITUTION AMENDMENT BILL 2001
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Bill
The objectives of the Bill are to:
· improve the processes for determining applications for
development approvals for brothels;
· improve the processes for determining applications for brothel
licences; and
· amend the Act to clarify existing provisions and address
operational issues.
Reasons for the objectives and how they will be achieved
The Prostitution Act 1999 (the Act) substantively commenced in July
2000. The purpose of the Act was to achieve strict regulation of the
prostitution industry in the interests of promoting health and safety in the
industry, and limiting the adverse effects of the industry on society. To
achieve this the Act restricts legal prostitution to small licensed brothels
and individual sex workers.
The regulatory framework for brothels is comprised of two components
- one dealing with the licensing of brothel operators by the Prostitution
Licensing Authority and the other with the development assessment of sites
for use as brothels, which is administered by local governments.
The Bill improves the processes for determining applications for
development approvals for brothels by local governments by:
· defining the term "industrial area", which is the basis upon which
a local government determines whether a development
application for a brothel is code assessable or impact assessable;
· specifying how the exclusionary distances from residential areas
and other places are to be measured; and
2
Prostitution Amendment Bill 2001
· creating a streamlined review process for decisions about code
assessable applications.
The Bill improves the processes for determining applications for brothel
licences by:
· providing that the Prostitution Licensing Authority is not obliged
to consider an application until development approval is granted;
· changing the mandatory prohibition on applicants with a
conviction for running a brothel obtaining a brothel licence, to a
matter which the Prostitution Licensing Authority must consider
in assessing the suitability of applicants; and
· updating the list of disqualifying offences and extending it by
providing that attempts to commit any of the listed offences are
also disqualifying offences.
The Bill also addresses difficulties confronted by police when seeking a
declaration that premises are a prohibited brothel that have emerged since
the commencement of the Act.
Administrative cost to Government for implementation
There will be no additional administrative cost to Government as a result
of the amendments in the Bill. The costs of registrar support and fees for
the independent assessor will be absorbed within existing budget.
Consistency with fundamental legislative principles
The Bill is consistent with fundamental legislative principles.
Consultation
Consultation has taken place with the Local Government Association of
Queensland, the Prostitution Licensing Authority, the Prostitution Advisory
Council and relevant government departments including the Department of
Local Government and Planning. There is support for the Bill.
3
Prostitution Amendment Bill 2001
NOTES ON PROVISIONS
Clause 1 sets out the short title of the Act.
Clause 2 states that the Act commences on a day to be fixed by
proclamation.
Clause 3 states that the Act, other than s.24, amends the Prostitution Act
1999. The proposed s.24 makes minor consequential amendments to the
Integrated Planning Act 1997.
Clause 4 amends s.15 of the Act to enable the Prostitution Licensing
Authority to defer considering an application for a licence until such time
as the assessment manager gives development approval for a material
change of use of the premises to which the application relates for a brothel.
Clause 5 amends the circumstances in which the Prostitution Licensing
Authority must refuse to grant a licence in s.16 of the Act by omitting
reference to circumstances where the applicant has been convicted of an
offence, the facts of which constitute the running of a brothel.
Clause 6 provides that the relevant matters that must be considered by
the Prostitution Licensing Authority when deciding whether an applicant is
a suitable person to operate a licensed brothel in s.17 of the Act include
whether the applicant has been convicted of an offence, the circumstances
of which constitute the running of a brothel.
Clause 7 amends the circumstances in which the Prostitution Licensing
Authority must refuse to grant a certificate in s.41 of the Act by omitting
reference to circumstances where the applicant has been convicted of an
offence, the circumstances of which constitute the running of a brothel.
Clause 8 provides that the relevant matters that must be considered by
the Prostitution Licensing Authority when deciding whether an applicant is
a suitable person to be an approved manager of a licensed brothel in s.42 of
the Act include whether the applicant has been convicted of an offence, the
circumstances of which constitute the running of a brothel.
Clause 9 replaces s.62 of the Act. It creates Division 1--Preliminary and
defines certain terms for the purposes of Part 4 of the Act.
Clause 10 amends s.63 of the Act by omitting the word "licensed" from
the words "licensed brothel". The purpose of the amendment is merely to
reflect the dichotomy of the two components comprising the regulatory
framework for brothels, namely the assessment of applications for
development approvals by local government and the licensing of brothel
4
Prostitution Amendment Bill 2001
operators by the Prostitution Licensing Authority. Consequential
amendments have also been made to the Integrated Planning Act 1997
where the term licensed brothel is used (see Clause 24). The amendment is
consistent with current planning terminology.
Clause 11 inserts new sections affecting the manner in which an
application for a development approval for a brothel must be determined as
follows:
· s.63A describes the relationship between the Act and the
Integrated Planning Act 1997 in relation to the assessment by
local government of applications for a development approval for
a brothel. In essence, while the provisions of the Integrated
Planning Act 1997 are to apply to such applications, the Act
prevails to the extent of any inconsistency with the Integrated
Planning Act 1997. Further, s.63A defines the term "industrial
area" for the purposes of the application of the Integrated
Planning Act 1997 to a development application. It is intended
that the definition of the term "industrial area" in s.63A also
applies to the term as it is used in the Integrated Planning
Regulations 1998, consistent with section 7 of the Acts
Interpretation Act 1954 which provides that in an Act, a
reference to a law includes a reference to a statutory instrument
made or in force under the law. The definition makes it clear
through the use of examples that industrial areas are not limited
to heavy industry;
· creates Division 2--Particular provisions about development
applications; and
· s.63B requires the assessment manager of a development
application to give the Prostitution Licensing Authority a copy of
the application, and a copy of the written notice provided to the
applicant stating whether the development application is code
assessable or impact assessable within 10 business days after
receiving the application.
Clause 12 amends s.64 of the Act to clarify the provisions preventing
brothels being located near certain residential areas, residential buildings,
places of worship, hospitals, schools, kindergartens, or any other facilities
or places regularly frequented by children for recreational or cultural
purposes, as follows:
· when determining whether land the subject of the application is
in, or within, 200m of any of the above areas, buildings, facilities
5
Prostitution Amendment Bill 2001
or places the distance is to be calculated from the closest point of
any boundary of the area or the land upon which there is a
building, facility or place;
· the distance of 200m is to be measured according to the shortest
route a person may reasonably and lawfully take, by vehicle or
on foot, between the land the subject of the application and the
other land;
· in addition to the above, if land the subject of the application is
within 100m measured in a straight line of the closest point of
any boundary of the land upon which there are any of the above
buildings, facilities or places, the application must also be
refused; and
· a caretakers residence on land in an industrial area is not a
residential building.
Clause 13 enables decisions about code assessable development
applications to be reviewed by an independent assessor, rather than the
Planning and Environment Court. Appeals against applications for
development approval for a brothel that are impact assessable are to remain
within the jurisdiction of the Planning and Environment Court.
Sets out new divisions of Part 4 of the Act. The proposed new sections of
these divisions are set out below.
Division 3--Objects of appeals divisions
Section 64A states that review of decisions is to be conducted in a
manner that is easily accessible, fair, speedy and just.
Division 4--Independent assessor
Section 64B addresses the appointment of an independent assessor.
Section 64C enables an acting independent assessor to be appointed by
the Minister in certain circumstances. The power to appoint includes the
incidental powers listed in s.25 of the Acts Interpretation Act 1954.
Section 64D provides for remuneration of the independent assessor.
6
Prostitution Amendment Bill 2001
Section 64E states that the independent assessor is not subject to control
or direction by anyone.
Section 64F establishes the independent assessor's jurisdiction. The
decisions that may be appealed to the independent assessor are listed in
s.64K.
Section 64G prevents the independent assessor hearing and deciding an
appeal where there is a conflict of interest.
Section 64H provides the independent assessor, persons representing a
party before the independent assessor or a person making oral submissions,
the same protection as would apply in the Supreme Court.
Section 64I establishes a registrar for appeals to the independent
assessor.
Section 64J enables delegation of certain functions by the independent
assessor to the independent assessor's registrar.
Division 5--Appeals
Section 64K describes the matters that may be appealed by an applicant
to the independent assessor. Section 64K also excludes the jurisdiction of
the Planning and Environment Court in relation to any such appeal, except
for an application for a declaration to the Planning and Environment Court
about the meaning, effect or enforcement of a condition of a development
approval.
Division 6--Starting an appeal
Section 64L describes how an appeal is to be started.
Section 64M empowers the assessor's registrar to give notice of the
appeal to the assessment manager and to the Prostitution Licensing
Authority.
Section 64N suspends a code assessable development approval until an
appeal is started or concluded.
Section 64O requires the assessment manager to give the assessor's
registrar any material requested by the assessor's registrar.
7
Prostitution Amendment Bill 2001
Division 7--Procedure
Section 64P provides that in deciding an appeal, the independent
assessor need not proceed in a formal way, is not bound by the rules of
evidence, must comply with natural justice, may inform him or herself as
considered appropriate, may seek the views of any person and may give
necessary directions about the conduct of the appeal.
Section 64Q enables the independent assessor to allow a longer time for
the taking of a step in the appeal other than the time for starting an appeal.
Section 64R provides that each party must bear its own costs for the
appeal.
Section 64S describes a process for the determination of an appeal. The
procedures in s.64S are subject to the general provisions in s.64P and the
extension of time provisions in s.64Q. The process described in s.64S
involves the following steps:
· the independent assessor makes a preliminary assessment of the
decision being appealed against within 10 business days after
receiving material from the assessment manager;
· a copy of the preliminary assessment is provided to the appellant
and the respondent;
· the applicant and the respondent have 10 business days to make
written submissions about the assessment; and
· the independent assessor decides the appeal within 5 business
days after the end of the period for making written submissions.
The independent assessor may extend the time for deciding the appeal
where appropriate, for example, to allow parties to make oral submissions
or where the appeal is complex.
Section 64T requires the independent assessor to decide the appeal on
the law and policies applying when the application was made, and the
materials provided to the assessment manager. However, to ensure that
relevant new material can be considered, s.64T provides that the
independent assessor may also consider new material submitted by the
parties to the appeal if the independent assessor is satisfied that the new
material will help decide the appeal.
Section 64U describes the orders that the independent assessor may
make in deciding an appeal, and requires the independent assessor to give
all parties to the appeal notice of the independent assessor's decision and
8
Prostitution Amendment Bill 2001
the reasons for the decision. This section also makes clear that there is no
appeal against a decision of the independent assessor under the Act or the
Integrated Planning Act. Section 64U is not intended to exclude an judicial
review of a decision of the independent assessor pursuant to the Judicial
Review Act 1991.
Division 8--General
Section 64V enables parties to inspect and copy documents in the
independent assessor's possession for the purposes of an appeal.
Clause 14 amends s.65 of the Act. Section 65 currently enables a police
officer and other persons to apply to a Magistrates Court for an order
declaring that particular premises are a prohibited brothel. The amendment
to s.65:
· will enable a police officer to apply for a temporary declaration
before a proceeding for a s.66 declaration is started or ends; and
· states that an application for a temporary declaration by a police
officer may be made to a magistrate, and if so is a prescribed
authority for the Police Powers and Responsibilities Act 2000,
sections 451 to 453 (which enable police officers to apply for a
prescribed authority (such as a warrant) by phone, fax, radio or
other similar facility in urgent circumstances or other special
circumstances including the police officer's remote location).
Clause 15 amends s.66 to enable the court to declare premises to be a
prohibited brothel if it is satisfied that on the day stated in the application
(rather than on the day of the hearing) a person was operating a brothel
without a licence at the premises, or the premises were being used for a
brothel in contravention of the Integrated Planning Act 1997.
Clause 16 inserts a new s.66A into the Act that describes the
circumstances in which a court or magistrate may make a temporary
declaration, the application for which is provided for in s.65. Section 66A
also limits the period of a temporary declaration to until such time as a s.66
declaration is made, or the application for the declaration is withdrawn or
dismissed.
Clause 17 amends s.67 to describe the publication requirements for a
temporary declaration.
9
Prostitution Amendment Bill 2001
Clause 18 extends the evidentiary provisions in s.132 of the Act to the
independent assessor.
Clause 19 extends the disclosure of information provisions in s.133 of
the Act to the independent assessor, and the assessor's registrar.
Clause 20 extends the protection from liability provisions in s.134 of the
Act to the independent assessor.
Clause 21 inserts a new s.138A that enables the Prostitution Licensing
Authority to delegate powers of the Authority under the Act to the registrar,
other than power to grant, renew or cancel a licence. S.138A implements a
recommendation of the Queensland Audit Office to insert a power of
delegation by the Prostitution Licensing Authority into the Act.
Clause 22 amends Schedule 1 to the Act. A person is ineligible to apply
for a brothel licence if the person has been convicted of a disqualifying
offence. The term "disqualifying offence" is defined in Schedule 4
(Dictionary) to the Act, and includes an offence against a provision of the
Criminal Code mentioned in Schedule 1. Clause 22 amends Schedule 1 to
include the offences of attempt to murder and attempt to commit rape.
Schedule 1 is also amended to reflect amendments to the Criminal Code
arising from the Criminal Law Amendment Act 2000, namely the omission
from the Code of the offence of abduction (s.351), and the renumbering of
the offence of rape (from s.347 to s.349). Further amendments to the
definition of "disqualifying offence" are contained in clause 23.
Clause 23 defines certain words for the purposes of the Act including
disqualifying offence, which is amended to include attempts to commit, as
well as conspiring, counselling or procuring to commit a disqualifying
offence.
Clause 24 makes consequential amendments to the Integrated Planning
Act 1997 to ensure consistency with the Act in the use of the term "brothel"
rather than "licensed brothel".
SCHEDULE
Minor amendments.
© State of Queensland 2001