The law in New South Wales has attempted to ban a person from being the proprietor of a brothel by an indirect route. Due to the difficulty of gathering enough evidence to prove beyond reasonable doubt that a person is engaging in such behaviour, which is the usual burden of proof in criminal cases which the prosecution must discharge before a person can be found guilty of an offence, the sanction against a proprietor of a brothel in New South Wales can be found in the Disorderly Houses Act 1943 where the burden of proof is lowered considerably.

There are two main ways in the Disorderly Houses Act to "shut down" a brothel, by means of a Supreme Court order that the premises are a "disorderly house" and/or by means of an order made by the Land and Environment Court on an application by a local Council. We will discuss each of these alternatives in turn. 

SUPREME COURT ORDER

The Disorderly Houses Act provides that a Superintendent or Inspector of Police may make an application to the Supreme Court of New South Wales for a declaration that a premises are "a disorderly house", following which a notice can be served on the owner of the house.

After the service of the notice, if the owner of the house cannot show that he or she has taken all reasonable steps to evict the occupier from the house, then he or she is guilty of an offence and liable to a penalty not exceeding $1100.

It is interesting to note that the police are only required by the Act to show reasonable grounds for suspecting that the premises are being used for certain purposes in order to give the Court power to make the declaration that the premises are in fact "a disorderly house".

There are a variety of purposes listed in the legislation which would form the basis of the police's reasonable suspicion and therefore the Court's declaration, such as drunkenness or disorderly or indecent conduct, or any entertainment of a demoralising character taking place on the premises.

Another ground is that reputed criminals or associates of reputed criminals use the premises.

In other words, the wording of the Act is extremely wide and vague and gives the police and Court a wide discretion to make orders which effectively curb the use of the premises.

It would be advisable to take expert legal advice in order to defend investigations by the police, and legal representation in Court would definitely be advisable as complicated questions of the admissibility of evidence gathered by police and the basis of their reasonable suspicions would be critical questions which would need to be addressed in legal proceedings before the Supreme Court if the matter was to be defended successfully. 

LAND AND ENVIRONMENT COURT

Another option available to curb the use of premises by the owner or proprietor of the premises under the Disorderly Houses Act is the power given to local Councils to apply to the Land and Environment Court for an order to prohibit the use of a premises as a brothel. This is a far more direct means of control over the use of the premises. Its indirect effect is to stop a person being a proprietor of a brothel in that location.

The Act states that a local Council must not make such an application unless it has received sufficient complaints about the brothel to warrant the making of the application.

The number of complaints which makes a "sufficient" number is not defined, thereby giving considerable discretion to the Council.

The complaints must be made by residents of the area in which the brothel is located who live in the vicinity of the brothel, or by residents of that area whose children use facilities in the vicinity of the brothel, or by occupiers of premises that are situated in the area and vicinity of the brothel.

The Council must include in its application to the Court a number of detailed submissions relating to the following criteria, which we summarise here without providing all of the detail of each one, given the limited space which we have available:

• Whether the brothel is near or within view of a church, hospital, school or other place frequently used by children;
• Whether the operation of the brothel causes a disturbance to the neighbourhood or interferes with the amenity of the neighbourhood;
• Whether sufficient off-street parking has been provided in the circumstances;
• Whether suitable access has been provided for the brothel.

If the Land and Environment Court is satisfied by the Council's submission, it may make an order under the Act prohibiting the use of the premises as a brothel.

There are important procedural issues which arise in any proceedings before the Land and Environment Court. The Court would act in this situation as a civil Court rather than as a criminal Court. The principle of natural justice, that each side is allowed to have his or her say and to cross-examine the evidence and witnesses of the other side, is a vital principle in proceedings such as this.

Any proprietor of a brothel who is facing legal action by a local Council should consider taking legal advice in relation to his or her rights under the Act and with respect to the procedural fairness which is to be adopted by the Land and Environment Court.

It may be necessary to take expert legal advice from lawyers who specialise in the area of local Council law and/or administrative law in order to receive the best legal advice on these issues. 

POLICE POWERS

Police have a duty to investigate if a complaint is made to them in relation to premises being used as a brothel. As noted in the free information page, the police have a wide discretion under statute to form a reasonable suspicion that the premises are in fact being used as a brothel. Police are likely to use common police techniques in gathering evidence, taking witness statements and so on. Police may also use under cover officers and may use a search warrant. 

THE IMPORTANCE OF TAKING NOTES AT THE TIME OR SOON AFTERWARDS

It is extremely important to take notes of what occurs in relation to the police investigation as it occurs, or if this is impossible, then as soon as possible after the event. You will be at a tremendous advantage if you are able to do this. 

SEARCH WARRANTS

If the police arrive at your premises, you are not obliged to allow them to enter unless they present to you a search warrant.

Provided that the police show you the warrant, you should not resist them or obstruct them.

However, it is VITAL that you record the details of the warrant, including any time or date which the warrant is expressed to be valid for, any detail as to the premises or location in which it can be used, and any other distinguishing details on it, file numbers, etc.

The validity of the search warrant can be checked later and if it is found to be incorrect then the evidence obtained by reason of the warrant can be challenged. 

FURTHER INFORMATION

This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.