News & Current Affairs
10 March 2015
Show me more sex, judge tells council in landmark legal case
Hornsby Council spent more than $100,000 to have an alleged illegal brothel closed and lost its case in court.
Case dismissed: Pupils from Hornsby Girls' High School walk past a massage parlour that won a legal battle with the council.
A Sydney council has lost a landmark legal battle against a massage parlour it alleged was operating as an illegal brothel, after a court ruled the council failed to prove there was enough sex being provided on the premises.
Hornsby Council paid a private investigator to go undercover inside the parlour and have sex with a prostitute as part of a bitter, year-long legal battle to have the operation closed. The business operates directly next door to a tutorial centre for primary school children - and 50 metres away from Hornsby Girls' High School.
But in a benchmark decision, a judge has dismissed the case, ruling that council's evidence of sex being sold on the premises fell short of the NSW's specific definition of the term "brothel" - which requires more than one prostitute to be providing services onsite. The outcome means both Hornsby - and other councils - would have to fund multiple trips inside suspect premises to have any chance of a result.
In response, Premier Mike Baird announced he would ask the NSW Parliament to establish a "full parliamentary inquiry" into the regulation of brothels across the state, saying it was a complex issue and he wanted to get it right.
While the government revealed the inquiry could trigger the appointment of a new stand-alone "Brothels Commissioner", the announcement falls short of the O'Farrell government's promise of a "new licensing authority", which was trumpeted as an "early priority" before the 2011 election.
"We want to make sure the whole of the community is protected and it is clear that something must be done," Premier Baird said.
"If re-elected we will make sure authorities have the powers to crack down on illegal brothels, while providing appropriate controls for the sex industry in this state."
Since the decriminalisation of the sex industry in the 1990s, the regulation of brothels has sparked a public policy nightmare for governments, with the industry overlapping across health, immigration, planning and law enforcement sectors.
In 2007, then Labor premier Morris Iemma introduced new reforms that placed the onus on councils to govern the industry. In doing so, he claimed that the courts would be able to shut premises down in less than a week.
The truth could not have been more different.
The Sun-Herald has previously identified at least 34 illegal premises operating within a five-kilometre radius on the north shore. Last year, it revealed that least 10 metropolitan Sydney councils had hired a small band of middle-aged, male private investigators to have undercover sex, as a last resort to gain the necessary evidence that will convince a judge to close an illegal establishment down.
But according to the letter of the law, it now appears that is not enough.
In January last year, Hornsby Council received complaints from local businesses and concerned parents and neighbours about a parlour, operating within a building at Edgeworth David Avenue.
Ron Smith, who runs a chartered accountancy from the same complex, said: "We have sat there and watched, with amazement, the sheer numbers that flow through the place. Ten to 15 men a day. We have never once seen a woman enter the premises."
The Hornsby Massage Centre denied, to the council, that it offered sex and maintained it was a standard, therapeutic massage business.
But after the council discovered the business was a regular paid advertiser on both an Asian sex website and in the adult section of the local newspaper, it hired a sex spy to go undercover and pose as an everyday client. His subsequent graphic report confirmed he was "offered and provided sexual services at the premises".
When the owners appeared before North Sydney Local Court in September, they pleaded not guilty.
The prosecution hearing for the premises was heard on January 19. In a judgment handed down last week, a judge ruled that the council had not met the "standard of proof" that the premises was a brothel, as defined in the Restricted Premises Act 1943.
While it had demonstrated that one worker was providing sex, the court found that the legal definition of a brothel involves more than one prostitute using the premises at any one time.
Hornsby Council confirmed last week its Planning Division is to lobby the NSW Department of Planning and Environment for an "urgent review" of the "legislative definitions" of a brothel.
Cr Nick Berman confirmed the council spent upwards of $100,000 "trying to do the right thing - and lost".
"To have to invest ratepayer's money to pay private investigators to have sex with prostitutes is, in itself, ludicrous. But to now have to send two, three, even four men in is bordering on the unbelievable."