Administrative Law: Court of Jurisdiction and Source of Jurisdiction - Essay Example

?Administrative Law Table of Contents Table of Contents 2 Introduction 3 Decision or Decisions That Alice Can Seek Judicial Review Of 4 Court of Jurisdiction and Source of Jurisdiction 5 Remedies That Alice Should Seek 6 Alice Have Standing or Not 7 Grounds on Which Alice Could Seek Review 8 Citizen against Prostitution and Minister’s Decision 10 Conclusion 11 References 13 Introduction The increasing gender inequality in population, re-organisation of social statures, stronger and more prominent influence of globalisation and modernisation around the world has immensely contributed towards an increased number of sex crimes where women and teenage girls become more vulnerable to such incidents. Consequently, there has been an urgent need to tackle and overcome such activities of prostitution which are in most communities considered as unacceptable. However, many countries in the light of the stated problem have legalized prostitution through brothels with the imposition of certain restriction so as to minimize criminal offences, simultaneously preserving social interests. For instance, even though an increasing percentage of population worldwide deciphers a strong believe that legalization of prostitution or brothels can de-motivate the performing of such offences, communities still perceive that such acts are immoral and should never be legalised as it might harm the social environment and the following generations by a large extent. Based on this understanding, in the light of Brothel Licensing Act 2011 (Cth), the case scenario of Alice will be assessed. Alice is an adult citizen of Sydney and runs a number of art galleries. Deciding that she would become a brothel ‘madam’, Alice renovates a dilapidated youth hostel into a high class brothel. Correspondingly, she applies for a brothel license pursuant to the Brothel Licensing Act 2011 (Cth). Although she is granted with a brothel license, two conditions were mentioned rigidly in the agreement which she feels to be inhibiting her business growth prospects. Accordingly, many issues are observed to emerge opposing the license granted to the brothel. Concentrating on these issues, the report will intend to evaluate the specifications of such acts and its justness to be enacted. Decision or Decisions That Alice Can Seek Judicial Review Of The Minister decides to grant Alice a brothel license based on two rigid conditions. The first condition restricts that there be a maximum of four people on the premises at any one time. Correspondingly, the second condition deliberates that the brothel shall provide prostitution services only within the hours of 9am to 5pm and from Monday to Friday only. It is worth mentioning in this regard that prostitution has been found as one of the oldest professional practices performed by people even after being strongly opposed in the orthodox period of human civilisation. In the current day perspective, many countries including United Kingdom, Canada, France, and Germany among others have made prostitution and brothel legal with the intention to reduce the rate of sex crimes bringing-in various legal restrictions. Laws that prohibit prostitution and brothels have often been opposed by feminists accusing it to act as sex discrimination. Therefore, in a free and independent society, such laws are regarded as inappropriate as these legal implications tend to violate the basic rights and individual liberties unnecessarily. Prostitution services do not harm any of the party engaged in the prostitution due to mutual agreements; rather it does de-motivate people to forcefully indulge in such activities. People who agree to pay value for the prostitution services rendered to them at their own will and interest are the likely clients of the brothels. It has often been mentioned that it is appropriate to enact strict laws against trafficking defining it to be a category of sex crime, rather than on brothels which focuses on agreed sexual activities1. Thus, with reference to Alice’s situation in terms of the legal restriction imposed during licensing, she can seek for judicial review on the specification its working hours. It is worth mentioning in this regard that the working hours specified by the Minister indicates the working hours of the potential customers to the brothel which can certainly hamper her business interests. Therefore, based on her business interests Alice has the right to seek judicial reviews based on this particular decision that shall allow her to operate throughout a week without any timing restrictions. Court of Jurisdiction and Source of Jurisdiction Alice can seek for jurisdiction from the New South Wales Land and Environment court. She can file a legal petition against those restrictions placed by the Minister concerning to the licensing of her brothel. She can challenge the conditions that forbid her from operating brothel services on certain criteria where the judicial body can be requested to consider the reason that if the brothel is allowed to work for only 4 days a week from 9 a.m. to 5 p.m., it is likely that the revenue should be allowed for entire week. Hence, it can be suggested that there should not be such restriction pertaining to the brothel business, as with such implications the business shall not be able to function as per expectation. It should be noted that brothel business aids in reducing many illegal activities prevailing in the society in terms of serious sex crimes such as rapes, murders and others offences. From a positive note, the profession of prostitution tends to render options to the probable offenders of sex crime thereby minimising the motives of committing such crimes2. Hence, on a positive note, prostitution cannot be considered to be immoral. Therefore, similar to any other commercial businesses, brothels can also be provided with necessary freedom considering the interest of both the parties i.e. the owner’s of the brothel and public interest. However, it should not be biased to the interests of either of the parties. Consequently, jurisdictions must enforce administrative actions against the services provided by the brothels if it is proved to disregard the social concerns or legal concerns, either directly or indirectly. Focused on these aspects, Alice can make use of legal petition against the two conditions mentioned by the Minister. Nevertheless, the right of Alice to seek for jurisdiction will be limited to the flexibility of working conditions in the brothel. Remedies That Alice Should Seek The legal petition file in the New South Wales Land and Environment Court is for relaxation of conditions placed by the Minister against the extent and time of operation of the brothel proposed by Alice. Alice can seek remedies in the form of extended time for the functioning of the brothel as well as the numbers of clients that will be able to enjoy the services of the brothel at any single time3. Based on these aspects, Alice can seek remedies on the issues that restrict her from operating her business as planned; however, without affecting the social concerns of the region. She can focus on the condition, enforced by the Minister regarding her working hours and days, evidently demonstrating them to be void and lack any rationality of a democratic civilisation. Consequently, she can plead that prostitution services through brothel is not illegal or an offense according to the New South Wales jurisdiction. Hence, Alice has the right to seek for remedies against the conditions specified by the Minister as a fundamental requirement to execute the operations of the brothel in a particular area. In this context, Alice can prove that there are other brothels operating in that suburb and other neighbouring areas, which are not bound by such conditions. Therefore, depicting a degree of biasness in the licensing procedure, Alice can obtain remedies to operate her business without any restrictions of days and hours. Alice Have Standing or Not Brothel Licensing Act 2011 (Cth), enacted from 1 February 2012, intends to regulate the operations carried out by brothels in the public interest. The Act primarily aims at ensuring the safety of prostitution services in Australia securing the legal as well as social interests of the commonwealth. Accordingly, the Minister holding an authoritative position for brothel licensing is identified as responsible for granting legal permit to the applicants in terms of licensing. In addition, a Secretary is engaged in the process, entitled to make a suitability assessment for the purpose of deciding whether or not to grant a brothel license. However, in relation to the case of Alice, the Minister and the Secretary, both specify certain objections for granting brothel licensing after making suitability assessment with concern to social interests. Consequently, the Minister placed two conditions along with the underneath reasons to restrict the operations of Alice’s brothel in terms of working hours and capacity, which were fundamentally owing to the community oppositions and safety issues. The reasons advocated by the Minister, especially those considering the condition of working for only 4 days a week from 9 a.m. to 5 p.m. reflect weak validation in terms of community oppositions. One of the strong standings for Alice can be identified as the elimination of such restrictions on the other brothels operating in the suburb. Grounds on Which Alice Could Seek Review It has often been acclaimed that prostitution has been one of the world’s oldest professions. Simultaneously, laws prohibiting prostitution, has also been accused to be an oldest example of autocratic governmental efforts to restrict the rights of the human beings. However, in the free society, such laws can be considered as inappropriate and irrelevant to a greater extent. It is worth mentioning that prostitution on will can by no means be termed as an offense. Contextually, it has often been argued that laws enacted against the prostitution violate the basic rights and liberties of an individual involved in sexual activities at their free will. Based on this philosophy, the Brothel Licensing Act 2011 (Cth) tends to allow providing prostitution services through brothel licensing. The prostitution services deliberately help in reducing sexual criminal offences and child prostitution in the city. Therefore, the government has the right to regulate the operation of the brothel through Brothel Licensing Act. Contextually, Alice can challenge the suitability assessment in the court; the Act does not specify the working hours or any other basic requirement for establishing such business in the city apart from a few brand specifications regarding the working conditions, safety of the people engaged and assurance towards securing the community interests. It is in this context that the conditions placed by the Minister concerning the time and extent of brothel’s operations, does not specify the suitability assessment findings. It is worth mentioning in this context that a degree of personal biasness regarding the morality of brothels was also found to be influencing the decision of the Minister which shall certainly provide a strong ground to Alice when seeking for a judicial review. Furthermore, the provided reasons specify that the Minister does not have much concern about the suitability assessment of the brothel. Additionally, the building is in its stage of re-innovation and thereby, if the Minister has any concern relating to the suitability assessment of the brothel premises, it would be given due consideration. However, the licensing agreement does not specify these aspects when documenting the conditions, reflecting mostly on the negative aspects of the proposal. Alice can seek review from the jurisdiction arguing that if any suitability assessment does not satisfy the basic requirement for the execution of the brothel, she would have been formally informed with a chance to develop the premises and adopt any other strategies which shall be beneficial in securing the legal as well as the social and business interests of the brothel. Alice needs to consider some relevant factors before challenging the license conditions. For instance, there are other brothels in the suburb which are operating free from such conditions, which depicts a degree of biasness even though a logic can be observed behind this reason that permitting too many brothels in one locality may result in social issues from the community’s end. However, Alice can emphasise on arguing that laws and regulations should be equal for all the brothels running within the city. Imposing one brothel with certain specific conditions therefore becomes irrelevant. Therefore, monitoring the decisions of the Minister, the conditions can be considered as biased against other brothels operating in the city. Consequently, the stated licensing conditions will have no or least impact on the lives of the community people residing in the suburb region where the brothel is intended to be located4. However, Alice should also ensure that proper managerial policies should be implemented in the brothel with due regards to the moral and social interests of the community as well of those people who will be engaged in the process directly. Furthermore, Alice should also ensure that all the norms of providing prostitution services, i.e. the employment of adults only on their free will, no trafficking or forceful involvement of workers, and no employment of minors among others, should be duly assured by Alice. Citizen against Prostitution and Minister’s Decision Prostitution continues to operate almost in all the major cities of the world. Some countries consider it to be legal while others consider it to be illegal. It is in this context that the argument arises at the point that prostitution has negative impact on the society. From a critical perspective, in today’s democratic and free economic environment, various sociologists and philosophists have argued on the explanations provided regarding the appropriateness of legalising brothels and the prostitution services. Varying arguments have been identified in this regard where having sex on streets, cars or any other open areas have been strongly opposed terming them as illegal but prostitution through a brothel or within a closed area with free consent cannot be termed as illegal. As much as the sexually transmitted diseases are concerned, it can be prevented with the use of condoms and safety measures provided by brothels in a controlled area5. Therefore, when concerning prostitution, citizens do have a stand to oppose such activities provided it tends to hamper the social interests taking place in open areas, in an uncontrolled manner or with force. However, if the activities are taking place in a closed environment with mutual consent and in a controlled manner without hampering the social environment, citizens must not be entertained to oppose the licensing. Conclusion Prostitution is not illegal when voluntary involved in controlled environment. It is the world’s oldest profession practiced by people in many parts of the world. Voluntary prostitution is often regarded as one of the rights of adults in democratic nations. Any law that prohibits prostitution in a free society is thereby criticised to be irrelevant and inappropriate as these laws tend to violate the basic human rights and liberties of the individuals involved. Based on these notions, Alice can seek judicial review as remedies on the brothel licensing conditions specified by the authoritative body which deciphers to be influenced by a degree of biasness and irrationality being influenced by the personal beliefs of the decision makers. With reference to the case scenario presented, it can be argued that the licensing conditions placed do not benefit the brothel owners as expected. From a critical perspective, it can also be argued that the conditions confine the operations of brothel by a greater extent having almost no apparent impact on the society owing to the fact that there are also other brothels in the city operating without any such restrictions in terms of working hours or customer attendance limitations. Consequently, this particular fact raises certain questions regarding the transparency of the decision taken by the Minister to avail the license, but under restrictions. This in turn provides Alice with a strong standpoint to seek for judicial reviews. References Armentano Paul, The Case for Legalized Prostitution (Dec 1993) < http://www.fff.org/freedom/1293e.asp > Department of Justice and Equality, Discussion Document On Future Direction Of Prostitution Legislation (Jun 2012) < http://www.justice.ie/en/JELR/Discussion%20Document%20on%20Future%20Direction%20of%20Prostitution%20Legislation.pdf/Files/Discussion%20Document%20on%20Future%20Direction%20of%20Prostitution%20Legislation.pdf > New Zealand Ministry of Justice, 11 Common Misconceptions about Prostitution (2012) < http://www.justice.govt.nz/policy/commercial-property-and-regulatory/prostitution/prostitution-law-review-committee/publications/plrc-report/11-common-misconceptions-about-prostitution > Roth Lenny, Regulation of Brothels (Nov 2011) < http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/Regulationofbrothels:anupdate/$File/E-brief.regulation+of+brothels.pdf > University of New South Wales, The Sex Industry in New South Wales (2012) < http://notes.med.unsw.edu.au/nchecrweb.nsf/resources/SHPReport/$file/NSWSexIndustryReportV4.pdf > Read More