Pimping Proscriptions

The new Auckland Council has announced that it will be supporting a local Bill which proposes to give it the power to prohibit street prostitution in specified places throughout the city.

This is a bad Bill.  It is unnecessary law-making and lazy regulation. 

Local authorities already have the power to address adverse instances of street prostitution, but must do so consistently with the decriminalisation purpose of Prostitution Reform Act 2003. 

The effect of the local Bill is to:
- attempt (unnecessarily, in my view) to enlarge the circumstances where the prohibition can be made,
- exempt the local authority from strict scrutiny of its justification for passing such prohibitions, and
- introduce disproportionate penalties for breaching the prohibition.

Let me explain.

The original local bill, the Manukau City Council (Regulation of Prostitution in Specified Places) Bill 2010, was promoted by the Manukau City Council and therefore only addresses Manukau City.  However, the new Auckland Council was given the opportunity to make a submission expressing its position following amalgamation.  The new Auckland Council supports the Bill and seeks to have to apply to its wider district. 

In a nut-shell, the Bill proposes to do the following:

1.  It will give the local authority the power to make bylaws designating any public place as "a specified place" where street prostitution is prohibited.  A bylaw will only be able to be passed where the local authority is satisfied that such a prohibition is "reasonably necessary" to prevent "nuisance or serious offence to ordinary members of the public using the area" or is behaviour is "incompatible with the existing character or use of that area".

2.  An offence, punishable by a $2,000 fine, will be created – criminalising the conduct of the "business of prostitution" or supply or receipt of "commercial sexual services" within the designated place, other than in a brothel.

3.  The Police will be given the power to arrest any person where they have good cause to suspect them of committing an offence (and a related power to stop and search any car).

Well, my view is this is totally unnecessary, because local authorities already have the power to address adverse instances of street prostitution.  I've very briefly pointed to this argument in a chapter elsewhere dealing with the regulation of prostitution by local authorities (Dean R Knight "The (Continuing) Regulation of Prostitution by Local Authorities" in Gillian Abel and others Taking the crime out of sex work: New Zealand sex workers' fight for decriminalisation (Policy Press, Bristol, 2010) 141-1), but let me expand on it here.

Before a local authority can pass a bylaw, they must have been given authority by Parliament to do so.  Lawyers sometimes describe this as having the "jurisdiction" to make a bylaw.  But it might be easier to think of it as a gateway.  Local authorities can pass through certain gates for the purposes signposted on the front of the gate.

The reforms of local authority law-making powers in 2002 replaced numerous, specific, narrow gates with three wide and generic gates.  Nowadays local authorities can make bylaw for the following purposes (s 145 LG Act 2002):
(a) to protect the public from nuisance (s 145(a));
(b) to protect, promote, and maintain public health and safety (s 145(b));
(c) to minimise the potential for offensive behaviour in public places (s 145(c)).

In addition, local authorities are given an additional suite of narrow and specific gateways.  These includes the power to "regulate … trading in public places" (s 146(a)(vi) LG Act 2002) and the power to regulate the location of brothels (s 14 Prostitution Reform Act).

Hmmm.  This is where it gets interesting. 

Go back and look at the circumstances set out in the proposed local bill where bylaws will be able to be passed: 
- reasonably necessary to prevent nuisance -> already addressed by s 145(a);
- reasonably necessary to prevent serious offence to ordinary members of the public using the area -> already covered by s 145(b);
- behaviour is "incompatible with the existing character or use of that area" -> this is not covered in the generic gateways.

But then there is the more specific power to regulate "trading in public places", without any express limitation.  This would readily cover concerns that trading – which must include the provision of commercial sexual services – is incompatible with the existing character and use of the area.  That power has been used to address a wide range of problems and issues arising from street trading and there's no reason to suspect it can't address trading of sex services when part of that trading occurs in public.

So, when viewed in the round, three of the new gateways sought are already provided for in existing local government legislation.  Unnecessary law-making.

What then does the Auckland Council (and formerly Manukau City) want?  Why isn't it prepared to rely on its pre-existing powers?

In my view, it is eager to get a more specific gateway to pass a bylaw because it is easier for it to justify its use to the courts. 

Unlike Parliament, laws made by local authorities can be invalidated by the courts.  Typically the courts will do so where a local authority tries to make a bylaw:
(a) where it has no power to do so (ie, a local authority passes a bylaw without passing through a gate or passes through a gateway for the wrong purpose),
(b) where the bylaw is unreasonable, or
(c) where the bylaw is irreconcilably inconsistent ("repugnant") with other laws.

I've set out earlier why I don't think  ground (a) is a problem.  In my view, local authorities have the power or jurisdiction to make such bylaws.

Any trickiness arises from grounds (b) and (c).  And it gets little trickier as these two grounds tend to merge.

These two grounds allow the courts to assess the purpose, merits and effect of the bylaw and to scrutinise, in the round, whether the local authority has a sound justification for the bylaw.  I've argued elsewhere that this effectively involves assessing the "proportionality" of the bylaw – a fancy lawyer's term for a cost-benefit calculus.  Law-making must be objectively demonstrated to be justified.

Now, because local authorities are elected bodies subject to the checks-and-balances implicit in the governance and electoral processes, courts nowadays cut them some slack.  Usually, they're unlikely to second-guess the judgements made by local authorities about whether something is justified – unless those judgements are really crazy or there has been no attempt to provide such a justification (see, for example, Conley v Hamilton City). 

But in some circumstances the courts scrutinise the justification more closely, particularly where the bylaws may have serious adverse consequences or may undermine other legislation.

The regulation of street prostitution is one of those circumstances, I think.  If a bylaw passed under existing powers was challenged, the courts would be anxious to ensure that the bylaw did not undermine the purpose and spirit of the Prostitution Reform Act.  This Act decriminalised prostitution for a number of reasons.  Implicit in the multi-faceted purpose of the Act is the notion that criminalisation of prostitution marginalised sex-workers, sending them underground.  This made it difficult to provide them health and safety support and welfare measures they needed.  The Prostitution Reform Act ushered in a new regime supportive of sex workers.

So, the courts would be concerned if the banning of street prostitution might undermine that objective.  But the nature and context of the bylaw would be critical.  For example, a modest and targeted prohibition of street prostitution might be okay, where there are serious adverse effects on the public. But a ban throughout much of the district or realistic areas where sex workers operate probably might not.  The courts would be likely to insist any measure was carefully tailored and narrowly circumscribed.

The courts' view might also depend on the liberalism of (related) brothel bylaws.  If a local authority makes a conscious decision to encourage the transition of sex workers from the street into brothels and had limited regulation of the local brothels, then that might mean a street prostitution bylaw might be justified.  But if the combined effect of a brothel bylaw and street prostitution bylaw was to try and snuff out prostitution, then the court would most likely intervene.

Similarly, the courts are likely to insist that the mischief that a street prostitution bylaw seeks to address is robustly proven and evidenced.  That's part of the care to make sure it doesn't unduly impact on the decriminalisation regime.  Anecdote and bald assumptions are not enough.

That's really a long way of saying that I think, under existing law, the courts will allow local authorities to ban street prostitution, as long as any bylaw is carefully constructed and robustly justified.  And the courts will scrutinise this quite closely.

But, under the proposed local Bill, things would be turned on their head.  Presented with a more specific gateway, the courts are likely to revert to light-handed review.  The courts will take the view that Parliament has spoken and given a express mandate for street prostitution to be regulated, without any concern about its impact on the previous decriminalisation agenda.  Under the new regime, the local authority would not need to present the same degree of justification and evidence.  Its assessment of the need for a bylaw would be more benevolently accepted by the courts.  A case would still need to be made, but the threshold of justification would be much lower.   

I think that's bad in principle.  Lazy regulation, through a limited need to justify the course of action.

At the end of the day, the regulation of street prostitution would amount to the repudiation of the decriminalisation solution.  Local authorities would, through the back door, be able to recriminalise prostitution.  This would undo the positive effects of decriminalisation (if you're uncertain about this, see the evidence in the Prostitution Law Review Committee's report and the book on the reforms: Gillian Abel and others Taking the crime out of sex work: New Zealand sex workers' fight for decriminalisation (Policy Press, Bristol, 2010)).

One final point.  The local bill seeks to augment the recriminalisation by including the power of arrest for suspected offences, even though the offence is fine only ($2,000 max) and falls in the class of minor environmental or regulatory offences.  Usually, the arrest power is reserved for offences punishable by imprisonment – otherwise the sanctions are disproportionate to the seriousness of the offending (or lack thereafter).  Here, the proposed arrest power adds a coercive element that means the sanctions are disproportionate to the mischief caused.

This Bill is unnecessary and bad in principle.  Let's hope the Select Committee sees sense and votes it down.