Brian Rudman: Shame on councillors for their anti-brothel bylaw

Justice Paul Heath has quashed Auckland City's ridiculous anti-brothel bylaw and ordered the council to pay costs to Club 574, the Epsom bawdy house which challenged the bylaw's legality. What a pity the judge doesn't have the right to force the Ma Grundies of the John Banks era, who enacted this bylaw, to pay the compensation out of their own pockets.

If they had any shame they'd do it voluntarily. After all, I did warn these Christian Right councillors back in November 2003 that what they were trying to do with the bylaw appeared to be ultra vires - in plain talk, outside the law.

Not that you needed a law degree to appreciate that what they were attempting to do with their bylaw was to thwart Parliament's then recent decision to bring prostitutes in from the cold and make the oldest profession legal.

Auckland City Council's act of resistance was a bylaw banning not just brothels, which the law addressed, but any other manifestation of the sex industry as well, from anywhere within a 250m circle centred on any place of education, on any church (if in suburbia but not the central city) and on major traffic interchanges.

When first floated, the draft bylaw defined the latter as including "an airport, a railway station, a ferry terminal, or the Otahuhu Bus Interchange".

I'm not sure whether the chaps of Otahuhu got a last-minute reprieve in the eventual bylaw - it's irrelevant now that the whole thing has been judicially scrapped. But I did wonder at the time why the bus-riding sinners of Otahuhu were being singled out to have to walk a penitential 250m before partaking of their pleasure.

There was even a ban on brothels at street level, which, rather delightfully, raised the ire of something called the Older People's Network Forum, who claimed this would discriminate against the one-in-five disabled Aucklanders who would be excluded "from participation in activities which are legally available to others".

Justice Heath said he was applying well-established legal principles in concluding the bylaw invalid, pointing back to a 90-year-old judgment outlining that a local authority proposing to regulate in relation to a public right must take into account the general law on the same subject: "A bylaw must not destroy the public right nor conflict with existing legislation. Any bylaw which destroys, unnecessarily prejudices or interferes with a public right without producing a corresponding benefit to the inhabitants of the locality must necessarily be unreasonable."

Noting that one-third of Aucklanders live within Auckland City's boundaries, Justice Heath said the bylaw permitted a brothel in "only three (relatively small) pockets of land".

He said that "contrary to Parliament's clear intentions, all brothels (including small owner-operated brothels) are excluded from virtually all areas within the isthmus (including suburban residential areas where homes may be used as small owner-operated brothels) due to the way in which the location of brothels has been defined.

"The bylaw is invalid because it prohibits sex workers from plying their lawful trade from small owner-operated brothels in most areas of the isthmus. Further, it is scarcely conceivable that Parliament intended virtually no brothels, whether small or large, to operate on the Auckland isthmus."

In other words, Parliament is boss and councillors have to accept that. Instead of drawing up a brothel bylaw on moral grounds, "the location of brothels must be guided by the need to address policy considerations such as public nuisances, offensive behaviour in public places, public health, public safety and compatibility with existing character and use of surrounding land".

A city spokesman says the council is now considering where to go next. Let's hope there are no thoughts of appeal. If any city politicians are still keen to drive brothels out of town, then they should be standing for Parliament and trying their luck in the appropriate forum.

Having a brothel in the neighbourhood can't be any worse than the bar around the corner from me, which, of a summer's night, usually has a preponderance of loud boozers standing around on the public footpath.