Working girls : prostitutes, their life and social control
Chapter 2 : Control, regulation and legislation
This chapter explores the law on prostitution across Australia. It begins with an historical outline of the situation in Australian jurisdictions; presents a chart comparing legislation in countries overseas; and then discusses in detail the implications and effects of three major legislative trends: criminalisation (in all but two state or territorial jurisdictions), legalisation in Victoria, and decriminalisation in New South Wales.
Of greatest concern to prostitutes are the laws which control and regulate their industry. This is not to deny health, violence, industrial relations and taxation as important issues in their lives. The statutes are the aspect of prostitution over which they have least control, and which affects not only those issues just mentioned but also their private as well as their public lives. The law can force them to seek more clandestine places of work and thus reduce their incomes; it can encourage the intervention of organised crime in their industry; it can force them to accept pimps and panders for protection from arrest; it can involve them in a police extortion racket through having to pay individual policemen in order to avoid arrest; and, it can give them a criminal status even without a previous record. In spite of pimps and police extortion, these are no ultimate guarantees against arrest during police "blitzes"; they simply reduce the number of arrests. Criminalising legislation then turns women in prostitution, with no other record of crime, into criminals. Little wonder, then, that prostitute organisations make law lobbies their quintessential focus.
Australian prostitution legislation offers an interesting variation of control and regulation from state to state. This Chapter begins with an historical development of this situation and then investigates the state statutes with a view to determining how these affect the lives of prostitutes.
Prostitution regulation in colonial and early federal AustraliaA history of prostitution legislation in Australia can be divided into three distinctive periods: the convict period; the late colonial period; the Federal period. In the first, apart from some ineffectual English common laws on "brothel keeping" and "disorderly houses" and colonial public nuisance legislation, no laws existed to interfere with a prostitute's industry. In the second period, regulation of prostitutes was sought through the various "contagious diseases" legislation. In the last period, criminal laws were introduced, beginning in the last decade of colonialism, to prohibit the activities of prostitutes, a situation which has continued in most states to the present day. It should be stressed at this point that this prohibiting legislation was aimed at the activities of prostitution and not at prostitution itself (which, of course, was the ultimate aim of the moral agitators in the last century). But, in most instances, without these activities, prostitution would be non-existent as a viable commercial enterprise. Therefore, it is the nature of the legal prohibition which makes the law discriminatory to prostitutes.
There is no evidence that prostitution as we might recognise it existed among pre-colonial Aboriginals. Since women were monopolised by older males through kinship alliances and the betrothal of female children, a surplus of females did not exist, and young men had to satisfy their sexual urges through clandestine heterosexual affairs, kidnapping women, homosexuality and "boy wives" (see Westermarck 1908-71, pp. 459-61). Professor Elkin, the eminent anthropologist and scholar of Aboriginal culture, alluded to pre-colonial wife loaning between males in a reciprocal system of exchange (Elkin 1974, pp. 161-2). Some writers claim that prostitution was unknown in tribal societies before contact with Europeans (Decker 1979, pp. 28-9). Thus, it is likely that the earliest Europeans to Australia were quick to manipulate the Aboriginal exchange system to their own benefit by buying women with European goods prized by Aboriginal men.
There seems little doubt that prostitution came to Australia with the First Fleet in 1788. Historian Robert Hughes (1987, p. 71) notes that of the 192 convict women who were transported on the First Fleet only two had previous reputations for being a "poor unhappy woman of the town". Another historian, L.L. Robson (1965, p. 77) claims that only one in five of all women transported to Australia had been prostitutes in England. Yet, contemporary accounts implied that the number of women already experienced in prostitution before arriving in the colonies was much higher. There is, of course, that now well-known remark made by naval lieutenant Ralph Clark (cited in Summers 1975, p. 267) in response to the arrival of another 200 convict women to the colony of New South Wales aboard the Second Fleet in 1790: "My God, not more of those damned whores!" In 1817 Earl Bathurst writing to Governor Macquarie on the "state of prostitution" in the colony stated that "female convicts during their voyage to the colony are permitted to live with officers and seamen of the ships." (HRA, vol. 1, no. 9, p. 750). The general attitudes in Sydney Cove were such that women embarking as assigned household servants "were in general received rather as prostitutes than as servants." (NSW Parliamentary Papers Vol. 2, p. 585)
On the other hand, as medical historian Dr Waugh (1971, pp. 146-50) has noted, the prominent English surgeon, Sir Anthony Carlisle, told a parliamentary commission in 1831 that the half--yearly voyage from England to Australia resulted in infertile prostitutes on board becoming remarkably fruitful in the colony due to so long a period without intercourse. Contemporary accounts are therefore quite conflicting concerning demands on convict women.
Much of this, as Hughes, Sturma and other historians have pointed out, was due to "the stereotype of women convicts as prostitutes emerg(ing) from... and ignorance of working class habits" (Sturma 1978, p. 10) by middle-class authorities. The words "whore" and "slut" were derogatory terms applied generally to working-class women by a disdainful middle class. The fact is, that most of the women lived in de facto relationships with men both in England and after transportation to Australia, and this in the eyes of the middle class constituted an immorality deserving the stigma of whore (Hughes 1987, pp. 244-50). Thus, it is the women who "lived" with their "de facto husbands" who more likely made up the sturdy female pioneer stock than the professional prostitutes who clung to town life, where business with urban males, sailors and the military thrived.
Modern historians still seem to respond to the myths about working-class women, rather than accept that in early colonial times, as today, only a minority of women chose to survive through prostitution. It was not a case of "most of our founding mothers and early poor women... forced into prostitution" (Dixson 1976, p. 139), nor, as Anne Summers (1975) indicates, were they necessarily processed into prostitutes by the brutal sea voyages to Australia. In her feminist analysis of female convictism she is convinced that:
It was deemed necessary by both the local and the British authorities to have a supply of whores to keep the men, both convict and free, quiescent. The whore stereotype was devised as a calculated sexist means of social control and then, to absolve those who benefited from it having to admit to their actions, characterised as being the fault of women who were damned by it (Summers 1975, p. 286).
It was probably unnecessary for British or colonial authorities to create or institutionalise prostitution in early Australia. There were enough women en route who were already experienced prostitutes, and enough who would take it up as a choice for survival in the colony to keep men "quiescent". The ancient whore stereotype would apply to them through practice, just as it was applied to others through assumption. As Judith Walkowitz (1974, p. 29) remarks in relation to its application to working-class women in 19th century England: "the distinction between promiscuity and clandestine prostitution may have remained bluffed."
With a high level of poverty in the colony and a large surplus of men, prostitution was pretty much assured, institutionalised by the state or not. Robson's (1964, p. 4) statistics on the numbers of convict men transported compared to the numbers of women implies a ratio of at least 5:1 in favour of males, and that is without considering the male excess among free colonists, officials and military personnel. By the end of transportation to New South Wales in 1840 the ratio of men to women was 3:1 in favour of men (Summers 1975, p. 278) in spite of deliberate attempts to redress the balance with single, free, women immigrants. But it was poverty and low wages which encouraged women into prostitution in early colonial Australia Oust as in late 20th century Australia) rather than any surplus of males (although some professional prostitutes from England would have immediately grasped the situation as a lucrative business venture). As one colonist noted: "There are not sufficient lodgings for them, or occupations, and they are forced into prostitution for these reasons." (HRA vol 1.1, no. 9, p. 198). The Reverend Vale wrote to Macquarie in 1818 that: "the greater part are compelled to prostitute themselves in order to find a place for their nightly shelter." (HRA vol. 4, no, 1, p. 287). Although the good Reverend probably exaggerated the situation in order to manipulate charity funds, nevertheless it stresses to some extent the economic problems of the colony in relation to prostitution.
Poverty and prostitution, along with homelessness, unemployment and drunkenness, were enough of a problem to colonial authorities for them to consider legal action. One witness to the Molesworth Committee of 1838 probably expressed what most authorities felt: "(The female convicts) are, all of them, with scarcely an exception drunken and abandoned prostitutes." (cited in Summers 1975, p. 274) In 1822 Commissioner Bigge, in his official investigations into the Australian colonies, told Macquarie that more than 20 "brothels" (most were private houses used by women to sexually service men) existed in the little town of Sydney, and that many of the inmates of the Parramatta Female Factory were being used as prostitutes as well as "legitimate" workers (Bigge 1972).1 Female factories at Parramatta and Cascades, near Hobart, with their alleged abuses by staff, immorality and prostitution by inmates, were a source of much controversy in the colonies. Such comments as the following gave these factories unsavoury reputations:
The greater portion (of inmates) betake themselves to the lodgings in the town of Parramatta, where they cohabit with the male convicts in the employ of Government, or with any person who will receive them (Hutchinson 1963, p. 52).
The meagre sustenance and brutal treatments of these factories were largely responsible for the abscondings, cohabiting and prostitutions of the unfortunate inmates.
Feminist historian Miriam Dixson (1976, pp. 139-40), in her analysis of colonial prostitution, points to a risk to one's self-esteem as a possible deterrent for many considering entering prostitution. Whilst this may be true for most women today, the likelihood of starvation and brutality in convict Australia was probably much more demeaning, and actually may have made the economic independence of commercial sex seem appealing.
In colonies desperately trying to bring an end to transportation after half a century of convictism, and anxious to improve a reputation soiled by brutality, virtual enslavement and a "low class" population, the authorities in Van Dieman's Land and New South Wales thought to arrest their social problems by repressive legislation rather than welfare. Thus, in order to wipe out the national stain, they made poverty and homelessness crimes in the Vagrancy Act of 1824 in Tasmania and the Prevention of Vagrancy Act of 1835 in New South Wales. The homeless, the desperately poor, drunkards, beggars, petty criminals and the prostitutes could be arrested and detained for "being without lawful means of suppose." it certainly did very little to stop poverty and prostitution and it forced the colonial powers to support those detained in gaol. But they were useful laws for rounding up "undesirables" at will and especially when the authorities wished to impress visiting notables. They did reflect the ideologies of the work ethic of the Protestant authorities as well. These served as a model for similar legislation in Queensland in 1851 and in Victoria the following year. The South Australian response is curious. This colony was founded as the ideal colony and was Australia's only non-penal urban settlement. All the problems associated with the other colonies were assumed not to occur. Yet, in 1842 only six years after the founding, an official communique mentions "the large numbers of females who are living by a life of prostitution in the city of Adelaide, out of all proportion to the respectable population" (Penney cited in Horan 1984). Two years later the Police Act was passed in the colony, with Clause 18 dealing with the "public annoyances" of prostitutes and other "undesirables".
These public nuisance statutes identified prostitutes as a social group along with other "problem" groups. In mid-century they became the focus of Christian charity, as an alternative system of dealing with prostitutes. Shelters for "fallen women" began to appear in the colonies, such as the refuges, reformatories, Magdalene Homes and girl's industrial schools of Christian organisations. These were no more successful than repressive laws. But one individual who had some success "rescuing fallen women" was the redoubtable Caroline Chisholm, who almost single-handedly shipped hundreds of free immigrant women to New South Wales in the 1840s with the intention of redressing the sex imbalance and marrying them to colonial men in order to strengthen the bourgeois family system. In 1841 she founded a female immigrants home, providing shelter and work for destitute women and immigrant brides for the colonial males. She claimed to have found work for 1,400 women, including 76 who were "reclaimed prostitutes" (Kiddle 1950, pp. 50-4). But in the end the task proved too much for even the tireless Chisholm.
The gold rushes of New South Wales and Victoria in the 1850s not only wrecked Chisholm's dream of a "respectable colony built on family life", but they made a farce of the "vagrancy" laws with hundreds of men abandoning their families for the diggings, thousands more men arriving in Sydney and Melbourne also bound for the diggings, professional prostitutes following the men to their make-shift gold towns, and hundreds of deserted wives and children in the cities having to fend for themselves through stealing, begging and prostitution. One witness to the Select Committee On The Condition Of The Working Classes in 1859 said: "The discovery of gold... have left numbers of women and families in Sydney without protection or any regular means of subsistence." (NSW Votes and Proceedings 1859-60). Police Inspector McLerie added that "more than half the prostitutes are under 20", and another witness elaborated on this:
I have seen very young girls following the call of a prostitute... But not so young as to make it a worse sin than common. If by a female child you mean a girl of 14 or 15, yes, but for that purpose she is no longer a girl (cited in Dixson 1976, p. 104).
The Argus newspaper in Melbourne in 1859 wrote:
Melbourne swarms with prostitutes. Morning, noon and night they are seen exhibiting themselves at their doors and windows, and with all the effrontery of harlotry. In the streets they may be seen at all times, frequently without bonnets, walking arm in arm and three abreast. Around hotels they congregate every evening; they rendezvous at the Theatre Royal bars for special practice at their seductive arts (cited in Winter 1976).
Comments such as these, loaded as they are with moral outrage, were making deep impressions on evangelical and other Christian organisations. It was obvious to them that the "vagrancy" laws alone were insufficient to deal with the growth of prostitution. But the colonial governments of the time were troubled by other problems. They were not anxious to deal with prostitution on purely moral grounds; but the threat of venereal disease, or "the social evil" as it was dubbed, offered them the incentive to control prostitution on health grounds. The English Contagious Diseases Acts of 1864-69 provided them with the means to legislate this control. Queensland was quick to respond with its Prevention of Contagious Diseases Act of 1868. Almost a replica of the British Acts, the colony's medical administrator, William Hobbs, describes its intentions:
With the tide of immigration that set in to this colony about 1864, a large number of loose women were landed in Brisbane... This Act was an adaptation of the Imperial Act of 1866, in which provision was made for the examination of prostitutes at regular periods; for the establishment of Lock Hospitals within the colony, to which the diseased were to be sent and detained until cured (cited in Cumpston 1989, p. 257).
The Act right from its inception proved to be ineffectual in either containing the disease or in regulating prostitutes, for as Dr Hobbs was forced to admit in an official report in 1879:
The Act, by providing the 14 clear days' notice shall be given by the police to a prostitute before being summoned for examination, affords her the opportunity either of abandoning her mode of living, or leaving the place in which she plies her vocation... The first issue of the notices to attend at the place appointed for examination was the signal for a stampede of those women of doubtful reputation. Many of them left Brisbane (Cumpston 1989, p. 257).
In spite of this report and a recommendation by the Queensland Legislative Assembly to repeal the Act in 1885, it remained on the statutes until 1911. A feminist-Christian lobby like the one in England never materialised in Australia.
The Queensland Act differed from the British model in one essential detail. The English Acts were intended for the protection of military and naval personnel only, but in the Queensland Act the civil community of Brisbane and other towns were the chief targets of protection. In Tasmania it was closer to the British ideal. Following requests by the Commodore and Staff Surgeon of HMS Wolverine to the Tasmanian Government to implement similar legislation as England for the protection of their sailors, the Contagious Diseases Act was passed in 1879 and Lock Hospitals established at the Cascades female factory building and as an annex of the Female House of Correction in Launceston, in accordance with a closer relevance to penalisation than to treatment (Daniels 1984, p. 59). This Act remained in force until 1903.
The Victorian Government introduced the Conservation Of Public Health Act in 1878. But in spite of its name it had a function no different to Queensland legislation based on the British system:
This Act provided that upon complaint on oath by a sergeant of police or a higher officer that a female was reputed to be a common prostitute, and that he had reason to believe that she was suffering from a disease (syphilis in all its forms), a Police Magistrate might require her to prove by the evidence of a medical practitioner that she was free from the disease (Cumpston 1989, p. 258).
The highly discriminatory nature of this as well as the Acts in Queensland and Tasmania2 highlights the most effective outcome of this health legislation. As a legal control mechanism it failed but in singling out prostitutes for treatment and incarceration in the lock hospitals it focused on this small group of women as a dangerous social group and as pariahs requiring specialised legal attention. Early in the colonies they were identified with convict women generally, as convicts were identified with them. Under the "vagrancy" laws they were not recognised as a special group but in general were cast with the homeless, the abject poor, drunkards and others lumped under the expression "without lawful income". But after the "contagious diseases" legislation prostitutes became a legal entity, easily singled out as a group by moralists and the social purists agitating for the legal prohibition of commercial sex.
Once this happened there arose official requests for the numbers of prostitutes in order for colonial governments to assess the extent of the "problem". Brisbane police recorded 77 prostitutes in 1868, but by 1884 this population had "risen" to 136 (Evans 1984, p. 136). Adelaide police reported 500 prostitutes in the city in 1881 (Horan 1984, p. 89). The City of Sydney Council reported 613 prostitutes in 1885, but by 1908 the Central Methodist Mission claimed the numbers had "risen" to 2,000 or 3,000 (Allen 1984, p. 204). The Melbourne newspaper The Spectator in 1885 claimed the city had 2,000 prostitutes, but the Victorian Government Year Book in the same year estimated only 597. By 1905 Victorian police were claiming that Melbourne had 3,000 (Winter 1976, p. 40). Quite obviously figures were being cited without empirical basis and often for political gain or manipulated for moral arguments. In 1871 Sydney had a population of 137,566 persons, while Melbourne had 206,780. By 1901 Sydney's population had grown to 481,830 and Melbourne's to 496,079 (Clark 1980, pp. 165-6). Applying the above figures, this would indicate that approximately 0.9 per cent of Sydney's female population in 1871 worked as prostitutes, and about 0.6 per cent of Melbourne's females. By the same reckoning, in 1901 approximately 1.2 per cent of the female population in both cities were prostitutes. If the cities' fathers had made the same kind of calculations, a kind of moral panic must have set in. Propelled along by the social purist lobbyists, the colonial legislators must have considered duplicating England's Criminal Law Amendment Act of 1885.
The world traveller R.E.N. Twopeny (1883, p. 124), who visited Sydney in 1881, and must have been familiar with London's East End as a native of that city, remarked on his amazement at the numbers and boldness of Sydney's prostitutes. In 1871 a booklet appeared entitled Vice and Victims in Sydney by an anonymous author. It warned of the moral dangers facing young men in the city:
There is a class of girls and young women here -- hopeless specimens of whom may be seen airing themselves in the Domain and gardens on Sunday afternoons, and on Sunday nights in George Street, putting even rough modesty to the blush by their shameless speech and acts-sapping the foundations of the State and urging youth to ruin and infamy (cited in Winter 1976, p. 30).
Such highly emotive words might have been seen as the "evidence" of moralists' own eyes surveying the open soliciting of women on the Sydney streets of George, Pitt, Castlereagh, Elizabeth, Phillip and King, as well as Martin Place in the 1880s and 1890s. In Melbourne during the same period street prostitution occurred openly on Collins, Bourke and Swanston Streets, while the city block bounded by La Trobe, Spring, Lonsdale and Exhibition Streets contained a "red light" area of brothels and bordellos (Winter 1976, pp. 30-2, 40). In the 1880s police reported their frustrations at convicting Melbourne's "brothel keepers" due to difficulties acquiring evidence of ownership (McConville 1980).
Finally, the colonial governments acted with a series of laws aimed at suppressing the activities of prostitutes, the recruitment of women for prostitution, and the operators of the sex businesses. South Australia quickly followed the English legislation in 1885 with the Criminal Law Consolidation Amendment Act in a knee-jerk reaction to hysteria about possible "white slavery" of the European sort (with Sydney being seen as the "sin city" where kidnapped Adelaide girls were taken) (Horan 1984, p. 106). The same Act increased the age of consent for girls from 12 to 16.
The Victorian Government introduced the Crimes Act in 1891 also to discourage the procuring of adult females (procuring of children had been a statutory offence since 1864). In the same year the Police Offences Act made "importuning" in a public place an offence throughout Victoria under Section (s.) 7(2). In Queensland in 1899 the Criminal Code Act prohibited procuring (ss. 217-19), unlawful detention (s. 220), and keeping a "bawdy house" (ss. 23 1, 235), each of which became indictable offences. This Criminal Code remains in force in the Queensland statutes, except for s. 220, unlawful detention, which was repealed in 1989.
In the 1890s Western Australia was faced with the same situation as New South Wales and Victoria had 40 years earlier, following the discovery of gold east of Perth. Prostitutes were quick to follow the miners to the gold town of Kalgoorlie and Coolgardie, while deserted wives plied a commercial sex trade in Perth. The Government reacted with an omnibus legislation in 1892, the Police Act, which made soliciting (s. 59), and consorting with prostitutes (s. 65) offences, and the Criminal Law Amendment Act, making procuring (ss. 2, 11) an indictable offence. The Municipal Institutions Act was introduced in 1895, giving local authorities power over the prohibitive offence of "brothel keeping" (s. 99) in the gold towns.
Thus, more than a hundred years after the first white settlement in Australia, prostitutes and prostitution, which had been introduced to the continent by the first white settlers, for the first time came within the direct ambit of criminal law. Not only were prostitutes blamed as disease carriers and a danger to the health of society by the "contagious diseases" legislation, now they were held largely to blame for society's immorality and female criminality by the law. It is important to understand that this definition of prostitutes as social pariahs is a legal fiction first introduced in this country less than a century ago.
The coming of Federation in 1901 did little to change this situation, except reaffirm and strengthen the existing legislation. Amendments to the Western Australian Police Act in 1902, for example refined previous laws. "Brothel keeping" (s. 7) was made an offence within its frame, and tenants or landowners who leased to "brothel keepers" (s. 7 & ) were also liable. A "brothel" for the purposes of this law referred to any place "kept or occupied by one person or more than one person" involved in prostitution. In addition to the laws pertaining to "common prostitute wandering the public streets" (s. 65), and "consorting with... known prostitutes" (s. 65) or "occupying a house with prostitutes" (s. 65), the act of soliciting and living on the earnings of prostitution (s. 8[l]) were added. Police were given enormous power over prostitution operations under this Act, a situation which led to the restriction of commercial sex to two areas in the state, Hay Street in Kalgoorlie by 1910 and Roe Street in Perth by 1920 (Davidson 1984, pp. 171-3). In effect, prostitution regulation in Western Australia had become a system of containment under police supervision. Under s. 42, for instance, police had a right to remove forcibly any prostitute or reputed thieves" known to them from theatres.
The Western Australian Criminal Code introduced in 1913 also dealt with "brothel keeping" (ss. 209, 213). Its most important prostitution laws were concerned with the procuring and detention of women in brothels (ss. 191-, 192, 194). In the matter of detaining a woman in a brothel against her will, the curious notion of lawful stealing of property presents itself when the owner or manager of a brothel
withholds from her any wearing apparel or other property belonging to her, or if, after wearing apparel has been lent or otherwise supplied to the woman or girl or by the direction of such person or any other person, he threatens the woman or girl with legal proceedings if she takes away with her the wearing apparel so lent or supplied, it is lawful for a woman or girl to take any such wearing apparel as may be necessary to enable her to leave a brothel.
Similar legislation has appeared in the statutes of other Westminster law systems both in Australia and overseas. Apparently, in cases of "white slavery" traffickers and brothel keepers removed the victim's clothing and replaced it with the skimpy or flimsy garments appropriate to commercial sex but not for public appearance.
The other states also refined their existing legislation. In Victoria, the Police Offences Act was amended in 1907 to include prohibitions against living on the earnings of prostitution (s. 5) and keeping a brothel (s. 6). In South Australia the Suppression of Brothels Act of 1907 gave police greater powers of conviction and indictment over brothel ownership (police under the Police Acts of 1844 and 1863 had always had greater powers for controlling street prostitution in South Australia than other colonies by treating it as a "public annoyance"). In Tasmania the various vagrancy and public nuisance statutes were incorporated into the Police Act of 1905. In addition, this Act prohibited "living on the earnings of prostitution" and "soliciting for immoral purposes" under s. 17, one of the most blatantly moralistic legal rhetoric in Australian law.
The Criminal Code of Queensland remained unaltered following Federation. An interesting comparison with Western Australia can be made with the legal interpretation of a "brothel". As we have seen, in Western Australia even a single prostitute in a house may have been seen as a brothel. In Queensland though, an early court decision defined the term thus: "A house used by a woman for the purpose of prostitution of herself only is not a brothel." (Singleton v. Ellison (1895) IQB p. 607) Yet in another court decision a "brothel", may have been accepted as such where a number of such single-prostitute establishments were grouped together: "If several flats in a block of buildings under one roof are used for the purpose of prostitution, the whole block may be a brothel." (Durose v. Wilson (1907) 71JP 263). These interpretations guided the law in the Criminal Code.
Several states used the old English term of "common prostitute" in their statutes. In the Queensland Criminal Code, s. 217 refers to a "common prostitute" as "a woman who commonly offers her body to men for lewdness in return for payment, even though she neither offers nor has sexual intercourse with them" (cited in R v. De Munck (1918) 1KB 635). The Canadian Criminal Code, which had also adopted the term, might express a common view by adopting an attitude of a "common prostitute" as a woman "once a prostitute, always a prostitute." Under this rationale she may not be "common" on her first prostitution experience, but any subsequent experiences would label her so.
In 1911 the Queensland Contagious Diseases Act was replaced by the Health Act Amendment Act, which was used not only to continue detaining prostitutes suspected of infection, but demanded that they attend periodical medical supervision. Under s. 132B(iv) it enabled the Governor in Council to regulate
Requiring prostitutes within the metropolitan area... and other such localities to which the regulations may from time to time, by Order of the Council, be extended, to submit themselves for periodical examination by a medical officer at specified times and places.
Under s. 132E(2) a court could further sentence a prostitute or vagrant convicted of an offence of "vagrancy" or other misdemeanour and
- Commit the female to be detained for any period not exceeding 12 months in an institution approved by the Governor in Council... as a reformatory... ;
- Impose imprisonment as aforesaid; or
- By its sentence imposed either of the above punishments, and suspend the execution of such upon such conditions as it thinks fit.
Thus, the Queensland Government devised its health regulations as a backstop to its criminal legislation and as an alternative to indictment under criminal statutes resulting in incarceration of prostitutes for offences other states treated as misdemeanours.
Whilst most state legislation included health laws to punish individuals responsible for knowingly infecting others, and enabling the detention of those who proved to be a "public health menace", in South Australia the Venereal Diseases Act of 1920 included the prohibition of the use of medical certificates for the purpose of prostitution (s. 16) and the criminal indictment of any owner or occupier of a place of prostitution who permits "any person suffering from a venereal disease to occupy" the place (s. 23). Woven into this legislation are the moral idea that prostitution is intrinsically wrong, and the mythology that prostitutes are irresponsible infectious creatures. These kinds of attitudes continue to pervade the criminal and health legislation right up to the present time.
Unlike the other colonies, New South Wales prior to Federation did not implement prostitution-specific laws. In 1908 the state government passed the Police Offences (Amendment) Act by which soliciting (s 4[l]), living on the earnings of prostitution (s 4), and brothel keeping and leasing premises for the purpose of prostitution (s. 8B) amended the Vagrancy Act. This had an immediate impact on the prostitution industry, changing its course from a relatively free-wheeling trade to a highly structured brothel enterprise in which the prostitutes became controlled by criminal bosses, or, in other words, "proletariatised" (Allen 1976, p. 213). In an insightful article Golder and Allen (1979-80) trace the development of prostitution in New South Wales from its late colonial laissez-faire operations often involving a prostitute and her boyfriend/husband protector through to the 1908 regulation when both were subject to the laws of soliciting and "pimping", after which many prostitutes were forced into houses owned by criminal networks where they received protection from the law through extortion and police corruption. They further explain how the Vagrancy (Amendment) Act of 1929 was introduced to deal with increases in female prostitution on the street following a recession in the traditional female textile trade, a clear case of the law being used to suppress the outward signs of a flagging economy.
Whilst New South Wales avoided the "contagious diseases" legislation of other states, in 1908 it introduced a nasty piece of health regulation known as the Prisoners' Detention Act. Similar to the Queensland legislation, it did not make prostitutes a special category, but its powers of detaining prisoners suspected of having a venereal disease even beyond their convicted sentence made prostitutes an obvious target after many came before the attention of the gaol authorities following incarceration for convictions under the Vagrancy Acts of 1901 and 1902. Indeed, the two Acts were held up as complementary legislation for recommended means of dealing with infected persons (Cumpston 1989, p. 260). Such an insidious precedent might have seen criminal laws being deliberately constructed in accordance with health regulation for the control of infectious diseases, so that gaol sentences might be passed on individuals for the purposes of bringing them under the control of medical authorities. It was indeed, the "contagious diseases" laws in other guises.
As in England and America, the criminalisation of prostitutes brought with it those connections between the women and hardened criminals that involved prostitution in the networks of organised crime. In Sydney throughout the 1920s and 1930s prostitution was inexorably linked with the sly grog and cocaine traders (McCoy 1980, pp. 101-2). This might best be seen by outlining the lives and events of two women of the period, well known for their involvement in prostitution but in different facets of the industry; one was a "madam" and owner of a number of brothels, while the other was a freelance worker sometimes described as a "gun moll".
Tilly Devine is a legendary figure among Sydney's many colourful characters of the 1920s period. English-born, she married an Australian soldier known as "Big" Jim Devine in 1919 and came to Sydney to live with him. In 1921, to avoid the soliciting law, she and Jim purchased a Cadillac, which they used for trading; he would drive while she solicited from the back seat. She purchased her first brothel in Palmer Street, East Sydney, in 1925. Within a few years she had acquired as many as 20 such houses in the street, earning herself the nick-name of "the Bordello Queen". In addition to houses of prostitution Tilly became involved in the traffic of cocaine. Many of her customers were her "girls" who became addicted to the drug, acted as dealers for her by interesting male clients to the brothels, and they became tied to her in a system of perpetual debt through advanced purchases of the drug. Tilly's long-standing rival in both prostitution and drugs was Kate Leigh, who owned a string of brothels and sly grog shops in Surry Hills. The rivalry became so intense that each woman had gangs of hired thugs to protect themselves and to harass their arch enemies. Tilly's gang of razor slashers would mutilate some of Kate's girls, and Kate would retaliate by having her gang of gunmen take pot-shots at Tilly's girls from rooftops.
On one occasion a rival gang attacked the Devine home in 1929 forcing "Big" Jim to slay one of the underworld's most vicious hoodlums in the ensuing gun fight. He was acquitted of murder. The Devines, it was suggested, had become so powerful that Tilly could bribe the entire police force. Her friendship with high ranking policemen was legendary. By the Second World War she had become the wealthiest woman in Sydney. But after the war her fortunes began to wane until finally the Taxation Department caught up with her, causing her to off-load her assets at such a rate that by 1959 she had only one house left in Palmer Street. Tilly, who had a record of 204 arrests, mostly for soliciting, consorting and offensive behaviour, had long been surpassed and her power had long been broken by the time of her death in 1970. But the image of Tilly Devine, "Bordello Queen", lived on to be emulated by a generation of "madams" after her (Blaikie 1980, ch. 1; see also McCoy 1980, pp. II 7-20; Allen 1979-80, pp. 218-20).
As Tilly Devine was the archetypal brothel "madam" of the post-war period, Nellie Cameron was the period's best known prostitute. Nellie once worked for Tilly, but at other times she worked for some of the most notorious gangsters in Sydney's underworld. It was said she was raised in a middle-class North Shore home, but at 14 ran away from her family to become a Kings Cross prostitute. Her first "pimp" was the brutal Norman Bruhn, leader of the infamous Darlinghurst Push razor-gang. When he was slain in a gangland war she gave her allegiance to another vicious hood, Guido Calletti, and when he too died in a gun fight, she became the lover of the hired killer, Frankie Green, known as the "Little Gunman". She was once asked by a policeman why she chose hoodlums and gunmen as "pimps", and she replied wryly: So that you can wake up in the morning and look at someone lower than yourself." (cited in Winter 1976, pp. 106-8). This reply is a pitiful self-indictment of someone resigned to a lowly status. It reflects a terrible internalisation of guilt suffered by prostitutes of the period, when they were openly scorned by society, identified as the archetypal female criminal, and forced to associate with the most brutal gangsters of the time. Throughout Nellie's career as Sydney's top prostitute she was shot on three occasions. One of these bullet wounds troubled her for the rest of her life, and assuming it caused her a lethal cancer, rather than face a lingering death she gassed herself in 1953, at the age of 41. She looked years older, her broken body showing the distinctive signs of the wear and tear of her hard life. "Nellie," wrote George Blaikie, "was a beautiful woman, but the lifestyle of a gangster's girl and prostitute took its toll with her premature death." Nellie spent most of her life in prostitution; it may be true to say that she gave her life to it too (Blaikie 1980, ch. 3).
Prostitution's association with organised crime in Sydney continued throughout its entire period of criminalisation. But, by the late 1970s, when the state government decided on legal reform, the city's biggest criminals maintained only a fleeting interest in commercial sex, having turned most of their attention to the much more lucrative heroin trafficking.
The third wave of criminalising legislation occurred in the 1930s. In some instances, the legal changes involved only one or two additions, such as the Victorian Police Offences Act of 1940, with its amendment to s. 3, enabling the conviction of a single prostitute in a flat or her home for "brothel keeping". In other instances, the changes were substantial and involved entire Acts and complex pieces of legislation. The Queensland Vagrants, Gaming and Other -Offences Act of 1931 was an example of such legislation. It included soliciting (s. s5), brothel keeping (s. 8), permitting prostitutes to operate in lodging houses (s. 9), living on the earnings of prostitution (s. 11[a]) as offences, while under s. IO brothel keepers were obliged to supply police with all names, ages and occupations of brothel inmates upon request by the police following representations to them by "two respectable residents" living in the vicinity of the brothel in question. The Queensland Health Act of 1937 reinforced the criminal statute by its prohibition of soliciting (s. 60[i]), pandering (s. 60[iii]) and occupying a house frequented by "known prostitutes" (s. 60[iv]); a tradition of complementary health-criminal legislation continued to apply.
In 1924 Tasmania introduced its Criminal Code Act, which made procuring (ss. 128[ii]-[iv], 129), unlawful detention in a brothel (s. 130) and keeping or owning a "disorderly" or "common bawdy" house (s. 140) indictable offences. The state's Police Offences Act of 1935 expanded on the previous "police" statute, with vagrancy (s. 5), consorting with "known prostitutes" (s. 6), soliciting (s. 8[ii]), living on the earnings of prostitution (s. 8[viii][a]), soliciting for immoral purposes (s. 8[viii][b]) and keeping or owning a "disorderly house" known to "harbour prostitutes" (s. 10[ii]). As a legislative package these laws were one of the most comprehensive sets of prostitution legislation in the country.
The South Australian Police Act of 1936 gave police extraordinary powers, equal if not exceeding that in Western Australia. A policeman could enter any house, room or place of entertainment (for example concert or music hall) and order a "common prostitute" to leave the premises (s. 63). He could apprehend her at any time (s. 67) and even do so without a warrant based just on her reputation as a "common prostitute" (s. 70). Here, it seems, the phrase "once a prostitute, always a prostitute" was most strongly believed. For the purposes of the law this Act defines a "brothel" as "any house or premises, or part of any house or premises, to which people of opposite sexes resort for the purpose of prostitution" (s. 101). While this interpretation is closer to the Western Australian definition than the Queensland, it is just as sexist as the latter. Brothel keeping and ownership were offences (ss. 102, 103) in the Act, and any letting arrangement became null and void once prostitution occurred on the premises (ss. 104, 105). Any police constable could enter any premises suspected of being a house of prostitution with no more than written permission by any superintendent, inspector or sergeant of police (s. 106). Later these legislated police powers would be difficult to wrest back from the police.
It is no coincidence that these legal modifications occur-red in the wake of the Depression. With increases in vagrancy, homelessness and prostitution as a response to unemployment and poverty, police powers had to be increased to deal with desperation and "idle hands" which the police were certain led to crime. It was a move to "nip serious crime in the bud" with convictions for misdemeanour offences. Usually, however, it had the reverse effect. Prostitutes came under special attention as particular female offenders. Few people considered the increasingly stringent laws as manoeuvring prostitutes, like Nellie Cameron, into serious crime, because of a common assumption that they were lost to society in the first place by their prostitution. The police understood that prostitution could not be entirely suppressed and acquired the power through legislation to regulate rather than remove commercial sex. It enabled them to be selective and discriminatory in their use of the law, so that the least compliant, the most troublesome and the most outspoken prostitutes could be dealt with by the criminalising legislation. What remained were women most likely to follow police instructions, most likely to stay invisible and quiescent, so that the criminalising legislation may publicly appear to be effective, especially to moralists, social purists and other prohibitionists who demand the impossible: the eradication of prostitution.
This historic review has shown how prostitutes have become a legally identifiable social group. In the early days of Australian colonialism, without the legal means to identify clearly those women working as prostitutes, they were closely identified with the convict population. Later, the vagrancy legislation could separate those convict women settled in family life and those wandering the streets, but still prostitutes were not a legally defined group and were regarded along with vagabonds, petty thieves and the desperately poor as an amorphous group of social "misfits". The mechanisms of the contagious diseases legislation singled out prostitutes as a legal entity separate from the rest of the population. With the introduction of criminalising legislation just prior to Federation, prostitutes were clearly identified in the public mind and were easily targeted for special legal treatment that closely paralleled them with the criminal class. It is this last stage of legal identification that has remained in the public consciousness to this day, and has provided the state with the means of socially controlling this small group of women with their aberrant sexual mores as it sees fit.
Criminalising prostitutes in current Australian legislationIn the last Chapter's discussion on basic rights three rights might be seen to predominate in concerns for legislation on prostitution activities in Australian jurisdictions. They are:
- The right to commercial trading without infringing on the rights of others.
- The right to private sexual relations and to occupational choice.
- The social right to good moral order in society.
These lie at the basis of the three broad legislative trends in modern society. In the first view prostitution is a response to a large demand and, like gambling and drinking, which also have dubious reputations with the conservative and moral sectors of society, in this sense it is related to the old Christian attitudes of "necessary evil". Thus, if it is not to be eradicated, it must be controlled and regulated through legislation. Control and regulation within this scenario usually restricts the trading of commercial sex, and is a system currently referred to as "legalisation". In its broadest sense, it has a historical precedence in Athens of the Classic Period, in the Roman Empire, in the late Medieval Period, and in the licensing systems of 19th century Europe.
The second view adopts a legal laissez-faire approach. It believes that prostitution should be freely available with no restrictions, or few legal restraints, based on a tradition of freedom of choice. In the earliest periods of human history, in most non-western societies where prostitution existed, in European history until the late Middle Ages, and throughout most of 19th century England and its colonies, as well as North America, the operations of prostitutes were little restricted by law. In a post-criminalising law climate this laissez-faire approach has taken on a kind of utopian dream among most prostitutes subjected to harsh penalising legislation and is known as "decriminalisation".
The third view is historically the most recent to be translated into law, deriving, as we have seen, from the high-powered moralism of the late 19th century. Throughout the 20th century European cultural contact with non-western societies wrought changes in traditional attitudes to prostitution, with such countries like Japan, India, Thailand and China (where traditionally prostitution had been officially approved of and certain kinds of prostitutes had a high social status) introducing harsh laws against commercial sex modelled on British and American legislation. One of the heritages of European colonialism has been the introduction of strict prohibitive laws on prostitution to curtail it among tribal peoples with no previous restriction. In Australia, as we have seen, prohibitive legislation is less than a century old. This approach in current Australian legislation is the subject of this Section.
Four Australian states - Queensland, Tasmania, South Australia and Western Australia - and two Territories - Australian Capital Territory and Northern Territory - possess legislation prohibiting activities usually associated with prostitution. It is necessary to understand that the act of prostitution itself, in which a commercial transaction exchanging sexual pleasure for cash takes place, is not prohibited by these laws (although, in New South Wales a recent law has prohibited "an act of prostitution... in a public place"). But in each of these jurisdictions the usual means by which prostitution can take place, such as soliciting, managing a brothel, consorting with prostitutes, advertising, and, in most cases, using a private flat/home, is prohibitive. A comparison of the various laws in each state/territory can be seen in Table 2.1A. The most striking variation on this table is between the states and territories mentioned above and Victoria and New South Wales. The latter two states, in fact, have adopted systems of "legalisation" and "decriminalisation" and will be the subjects of discussion in the subsequent Sections in this Chapter. For those interested in comparing Australian legislation with other Western countries, Table 2.1B includes some laws in New Zealand, England, and North America.
The current laws in the four states and two territories are directly descended from the legislation of the early Federation period, with the refinements that occurred in the immediate pre-war years prior to 1939. The main changes that have taken place since then have been of a minor kind, such as altering the names of Acts to give them a less "oppressive" designation. In 1976, for example, the South Australian Government changed the name of the Police Offences Act, 1953-75 to the Summary Offences Act, but the actual prostitution laws remained more or less intact. Other minor alterations included amendments to sexist terminology, such as in the Tasmanian legislation the Criminal Code Amendment (Sexual Offences) Act of 1976, s. 71 amended previous references to "female" in the Criminal Code to "person". On the other hand, the stigma of old terminology, such as "common prostitute" and including prostitutes with "reputed thieves", "known criminals", and "vagrants" as a single category in some laws continues in the legislation.
Perhaps the most important legislative initiatives were those of the territorial ordinances becoming parliamentary Acts and ordinances passed by the territorial governing bodies. Originally the Northern Territory adopted laws made by the South Australian parliament, and copied its Police Offences Ordinances from the South Australian model in 1923. But with self-government in 1978 this ordinance became the Summary Offences Act 1979, and an autonomous Criminal Code Act came into force in 1983. However, an old South Australian statute, the Suppression of Brothels Act of 1907, is retained to control "brothel keeping".
In the Australian Capital Territory the same autonomy as the Northern Territory has not occurred, but Canberra's administrative body introduced the Territory's Police Offences Ordinance in 1930, and in 1942 its Crimes Ordinance was a carbon copy of the New South Wales Crimes Act 1900 with the same laws dealing with the exploitative aspects of prostitution (pimping, procuring, under-aged employment in brothels).
The laws in these states and territories fall into a number of categories for the purposes of controlling prostitution: for example, the offences, crimes, health, liquor and tenancy statutes. We will concern ourselves here with the criminal law statutes of misdemeanour offences and certain felonies. Soliciting, pimping, consorting, and "brothel keeping" are usually classed as "misdemeanours" and found in the Police or summary offences laws. Procuring, detention, and the ownership or management of brothels are found most often among the more serious crimes listed in the Criminal Codes. The most serious crimes of all are those involving procuring by coercion, fraud or drugs, and the procuring of underaged females.
Soliciting is treated variously by the different jurisdictions as a relatively minor offence, although penalties attached to the appropriate laws (as at 1 October 1989) can be as high as a $1,000 fine, or as low as $10. In the ACT Police Offences Ordinance, a "common prostitute" who solicits or loiters in a public place for the purposes of prostitution can be fined a maximum of $10 although there is provision for a magistrate to order recognizance for good behaviour for a period of up to one year, and if this is not achieved the person can be gaoled for up to half a year (ss 17A[a] & [b], 17B). In the South Australian Summary Offences Act soliciting can bring a maximum penalty of $40 or two months gaol (s 25 [a] & [b]), while in Tasmania's Police Offences Amendment Act, 1987 it can result in a $100 fine or six months gaol (s. g[l][c]). In the Queensland Vagrants, Gaming and Other Offences Act a "known prostitute" found soliciting can be fined as much as $400 or imprisoned for six months by the court (s 5 [a]). For the purpose of this Act a prostitute, along with persons living on the earnings of a prostitute or consorting with one, is deemed to be a "vagrant", or someone "with no visible means of support or with insufficient lawful means".
Provision exists under the Act (s 5) for a magistrate to take alternative measures for females convicted of soliciting. The court might have her detained in an institution (not a gaol) for up to one year, or impose imprisonment (supposedly if she is an "incorrigible"), or suspend any of the above penalties as it "thinks fit". However, under a suspended sentence she may be arrested at any time if she fails to observe any of the conditions set by the court, and it may impose any of the suspended sentences.
In the Northern Territory Summary Offences Act soliciting can bring a fine of $500 or three months gaol, or both (s 53[l][a][ii]). Whilst a "common prostitute" may be fined $40 or one month's gaol for soliciting under the Western Australian Police Act (s 59), she can receive the harshest of penalties for "persistently solicit(ing) or importun(ing) for immoral purposes" with a $1,000 fine or one year's gaol elsewhere in the Act (s 76G[b]). Western Australia also includes other laws related to public soliciting. For example, in the Police Act "any common prostitute wandering in the public streets or highways behaving in a riotous or indecent manner" (s 65 ) can be penalised with a $500 fine or six months gaol. The act of soliciting might also be construed to apply in the Criminal Code (s 207[l]): "any person without lawful justification or excuse does any act [by which] ... the comfort of the public is interfered with [or] obstructed in the exercise or enjoyment of any common right is liable to imprisonment for one ear."
The meaning of soliciting for the purposes of the Law has been questioned in court3 to imply the active seeking of business in any public place, such as street, park, car parking lot, railway station, inside a motor car in a public place, in a theatre or a hotel or bar (although the liquor legislation in each jurisdiction usually permits the removal of prostitutes from licensed premises, or permits the prosecution of licensees who allow prostitution on their premises4). This means that a "common" or "known" prostitute might not be guilty of soliciting by simply streetwalking where she is approached by customers and does not initiate contacts with customers. South Australia, Western Australia and the Australian Capital Territory, however, possess laws against "loitering for the purpose of prostitution", and this may be used instead of a soliciting law where police can show that a woman was on a street for prostitution or "immoral purposes".
None of the above states or territories possess specific laws on customer soliciting, "kerb crawling" or "gutter crawling", thus reflecting not just a legal bias but a police bias as well, since soliciting laws, unless specifically mentioning "common prostitutes" might be applied to customers soliciting as much as prostitutes. Police responses to accusations of bias include claims that prostitutes are usually easier to identify than customers on the streets, and that prostitutes more readily plead guilty.
The laws of "living on the earnings of prostitution" are aimed at those who depend "wholly or partly" on the income of a prostitute, with the added evidence of being "without lawful means". Prostitutes are never charged with living on their own earnings, brothel owners and managers are usually charged under "brothel keeping" laws rather than "living on the earnings", and suppliers of goods and services who extract higher than normal payments from prostitutes are rarely arrested under these laws. Although the current laws are non-sexist with women as well as men liable to arrest for "living on the earnings" of someone who is a prostitute, police bias continues to see men living with prostitutes as "pimps" in the traditional sense and they are more vulnerable to arrest than female lovers or female pimps (although these women are more often arrested for "consorting").
All states and territories possess "pimping" laws. Under the SA Summary Offences Act the penalty for "living on the earnings" is a maximum of $200 or six months gaol (s 26). In the Tasmanian Police Act it is also $200 but has a gaol alternative of one year (s 8[1A][b]). Queensland's Vagrants, Gaming and Other Offences Act carries a maximum penalty of $400 or six months gaol (s 5 [c]), while police also have automatic powers of search of premises believed to be habitually used by prostitutes and pimps (s 11[a]). The WA Police Act carries a maximum penalty of $ 1,000 or 12 months for "living on the earnings" (s 76G[l][a]), and the NT Summary Offences Act also has a maximum of $ 1,000 or six months or both for a first offence, but for second and subsequent offences there is an automatic conviction of 12 months imprisonment (s 57[h]). The ACT Police 0ffences Ordinance carries only an indictment penalty of a maximum of three months (s 23[j]). Comparisons between penalties under the soliciting laws and those for "pimping" show that the law treats "pimping" as the more serious offence. However, due to the fact that many more prostitutes are charged many more times for soliciting than pimps are for "living on the earnings", these values seem to have false meanings in the practical logistics of police apprehension. Police argue that, once again, prostitutes are more easily identified, as well as more vulnerable to arrest, than pimps.
Consorting with prostitutes, living (cohabiting) with them, and in at least one instance, harbouring them are offences in all of the above states and territories (but not in Victoria or New South Wales). The "consorting" laws can be used as backstop legislation for controlling pimping, but much more often they serve to arrest prostitutes working in brothels. Penalties for consorting are often as severe as those for pimping. In the SA Summary Offences Act consorting with "reputed thieves and prostitutes" can bring a fine of $200 or six months imprisonment (s 13), while occupying the same premises "frequented by reputed thieves or prostitutes or persons of notoriously bad character" can result in a $ 1 00 fine or three months gaol (s 21). Tasmania's "consorting" law (s 8) in the Police Offences Amendment Act can bring a penalty of $200 or one year's gaol. For "harbouring prostitutes" in Tasmania, under the same Act this can result in a $200 fine or six months gaol (s 10[l][b]). In Queensland's Vagrants, Gaming and Other Offences Act consorting carries a penalty of $400 or six months (s 5[d]), but in the ACT Police Offences Ordinance it is an indictable offence, with a maximum of six months (s 22[fl) imprisonment. In the NT Summary Offences Act a person found to be consorting is charged with pimping (s 57[l][h]) for the first offence, but for any subsequent offences he/she faces the maximum conviction of 12 months gaol (s 57).
Under the WA Police Act a person found to be an "occupier of a house frequented by reputed thieves and prostitutes" (65[71) or ,. consorts with reputed criminals or known prostitutes" (65191) faces a maximum penalty of $500 or six months in each case. A person who is in the "habitual company" of a prostitute and is "without lawful means of support" is deemed to be living on her earnings and can be charged in s. 76G(2) with pimping and fined a maximum of $ 1,000 or receive 12 months imprisonment. The language of this WA legislation, no less than others, indicates precisely where the law locates prostitutes. Although the offences committed by prostitutes, such as soliciting, vagrancy, consorting, and in some cases, "brothel keeping", are usually much less severe than those committed by "reputed thieves", "known criminals", "rogues", and "vagabonds", the legal implications are that their associations with criminals indicates conspiracy and accessory. Since in WA law prostitutes are assumed to be always female, and female criminality is often associated with contravening sexual codes, there is a strong relationship between prostitution and female crimes in popular thought. This then is reflected in the law which associates prostitutes ("bad women") with criminals ("bad men").
The offence of "brothel keeping" in some states is also considered a crime with serious consequences. Even in the most lenient instances penalties usually involve a scale of punishments dependent on the extent of receivability. In the NT Suppression of Brothels Act (old SA legislation retained in force in the Territory), a person convicted of "brothel keeping" or leasing premises for the purpose of prostitution for the first time receives a maximum fine of $40 or three months gaol, but for subsequent offences the penalty increases to $80 and a recognizance of 12 months, with imprisonment of six to twelve months, depending on his/her behaviour in accordance with the court order and his/her record (s 3). Any woman found to be on any premises held out to be a brothel who refuses to disclose the name of the owner/manager may be charged in his/her place, and her husband/lover living with her can be charged with "living on the earnings of prostitution" (s 7). Under the SA Summary Offences Act "brothel keeping" brings a maximum of $ 100 fine or three months gaol for a first offence, and $200 or six months for subsequent offences (s 28). The Act also provides for landowners or tenants leasing or sub-letting or "permits any premises to be used as a brothel" with penalties of $200 for a first offence and $400 or six months for subsequent offences (s 29).
The ACT Police Offences Ordinance penalises "brothel keeping" with up to 12 months imprisonment (s 18[a] & [b]). In Western Australian legislation "brothel keeping" can be penalised under laws in both the Police Act and the Criminal Code. The first is the most lenient and is used more often as a deterrent than the second. It includes keeping, leasing or owning premises used as a brothel and can bring a penalty of $100 or six months for the first offence, or $200 or 12 months for subsequent offences (s 76[E]). In the Criminal Code "brothel keeping" is considered a serious crime but is used only in certain circumstances, such as for convicting a "keeper" known to be detaining women against their will, employing under aged girls, or drug dealing on the premises. Punishment is indictable for up to three years gaol for "brothel keepers" (s 209) or for "any person who appears, acts or behaves as master or mistress having care or management is to be taken as the keeper" (s 213). Similar legislation is found in Queensland, with the Vagrants, Gaming and Other Offences Act penalising "brothel keepers" with $400 or three months for a first offence and $800 or six months for subsequent offences (s 8), while under the Criminal Code a "brothel keeper" (s 23 1) and whoever "acts as master or mistress having care and management" (s 235) can receive maximum penalties of three years imprisonment with "hard labour". Tasmania's Criminal Code is the harshest of all, carrying a maximum penalty of 21 years gaol for "brothel keeping" or a penalty at the discretion of the judge (s 143).
One of the most perplexing problems in prostitution legislation is determining a legal definition for "brothel". Much of this has varied in accordance with court decisions in individual cases. As we have seen, early Federation legislation for the states established legal definitions of the term (pp. 78-9) according to English cases, such as Singleton v. Ellison and Durose v. Wilson, which have been confirmed in more recent cases.5 Queensland legislation has been most influenced by this English trend, whereby a single prostitute on a premises does not constitute a brothel, although a block of flats in which a prostitute worked in each one might he so regarded as a brothel. In Western Australia a single prostitute on premises may not disclude the premises from being declared a brothel, but, it appears that any prostitute who sees and services a client in her own home is not "keeping (these premises) for the purposes of prostitution" (Dixon 1982, pp. 8-10). In Victorian legislation a similar approach to the question of a single prostitute's premises not being a brothel was upheld in an early court decision (Barrington v. Rochfort  VLR 492). Likewise New South Wales courts have favoured the opinion that one prostitute is not a brothel when determining the meaning of brothel as a "disorderly house".6 In a notable South Australian case, the Supreme Court acquitted a woman from "keeping a brothel" because she managed an escort agency where the act of prostitution, defined as sexual intercourse for a payment, did not take place (Bosch v. Samuels  3 SASR 37). However, in the appeal, the High Court reversed this decision by claiming that contact with the place by men seeking to have intercourse elsewhere constituted the premises as a brothel (Samuels v. Bosch  127 CLR 517).
As with the "pimping" laws, so also "brothel keepers" are much less often charged with an offence than prostitutes because they too are difficult for the police to identify, as well as less vulnerable to arrest than prostitutes. Prostitutes working in brothels are subject to various "consorting" laws and offences of occupying premises "frequented by known prostitutes" found in the statutes mentioned earlier. Landowners and lessors are easier to locate than "brothel keepers" who do not own the premises and provide fictitious names as lessees. Landowners noted on public record as possessing property used as a brothel are liable to arrest under the SA Summary Offences Act if they persist in wilfully letting to prostitutes in spite of warnings (s 31 & ), or under the WA Police Act (s 76F) or Tasmania's Police Offences Act (s 11). In the ACT whoever leases, lets or sub-lets a caravan for use as a brothel is liable in the Police Offences Ordinance (s 19[a]), and in Queensland's Vagrants Gaming and Other Offences Act lodging house "keepers" are liable for permitting prostitutes as boarders (s 9). Penalties for these offences are similar to those for "brothel keeping" in the offences statutes. In any case, landowners do have provision in the various tenancy laws to enable them to evict those involved in prostitution on their premises, and to make leasing contracts null and void.7 In the NT Suppression of Brothels Act such provision exists with ss. 8 and 9. Even where a landowner is aware of the use of his/her property for prostitution, he/she may still act accordingly either by pretending to be unaware or treating police intervention as a warning to exercise their rights as landowners or suffer the consequences.
Procuring a person for prostitution is considered among the most serious crimes in the prostitution laws. It is included in the criminal codes of each state and territory and usually brings an indictable penalty. Procuring takes a number of forms, depending on the nature of the act, from inducement to drugging or use of violence on the victim, and depending on the age of the victim. Penalties are usually dealt in accordance with the severity of the case. Thus, a bound and gagged, drugged young teenager is likely to be very much more serious in the eyes of the court than an adult woman persuaded to work as a prostitute through a procurer's charm. In the WA Criminal Code procuring a woman to become a "common prostitute" or an "inmate of a brothel" (s 191, & ), procuring a woman for prostitution through false pretences (s 192) or detaining a woman in a brothel against her will (s 194) bring a maximum penalty each of two years imprisonment with hard labour. In the Queensland Criminal Code, for procuring any woman, not a "common prostitute", for unlawful carnal knowledge, including prostitution (s 21 7 ), for using threats, drugs or fraud to procure a woman (s 218), for detaining a woman against her will (s 220) can each result in a gaol sentence with hard labour of up to two years, while for assisting or permitting a man to have unlawful carnal knowledge of a woman (s 221) can bring another three-year sentence. In the NT Criminal Code the procuring of any person for prostitution by any means carries a maximum indictable penalty of three years (s 136[a]).
The SA Criminal Law Consolidation Act 1935 prohibits the procuring of a person to become a "common prostitute" or an "inmate of a brothel" (s 63) and to do so through the use of threats, fraud or intimidation (s 64[b]) can bring a maximum of seven years gaol each. In the ACT Criminal Ordinance enticing a female under 21 years of age into prostitution carries a maximum penalty of seven years imprisonment (s 91A) and for procuring any female through the use of threats, violence, fraud or drugs can bring ten years gaol (s 91 B). The severest penalties occur in the Tasmanian Criminal Code, in which procuring a person for prostitution (s 128), doing so with drugs, threats and intimidation (s 129) and detaining, a woman in a brothel against her will (s 130) each carry a maximum penalty of 21 years imprisonment or punishment at the judge's discretion.
These procuring laws reflect the public hysteria of "white slavery" existing in the late colonial and early federal periods but seem much less appropriate today. Even so, they remain in force to dissuade individuals from attempting to force others into prostitution. Although only occasionally used, they might be applied at times in the particular case of a prostitute persuading and encouraging another woman to take up prostitution. In this sense these laws are open to police discrimination, as has been the case in a recent Californian incident.8 Like all prostitution offences, the procuring laws continue to reinforce the popular notion of prostitutes as "bad women" by protecting "good women" from becoming "bad". They imply that women require some insidious manipulation by outsiders (usually men) to become prostitutes.
In the minds of the public, the police and the courts the most heinous of the prostitution crimes is the procuring of under-aged women. The age of consent for lawful carnal knowledge varies from state to state, 9 and this is usually the basis for protection in the prostitution laws. In Tasmania's Criminal Code it is a crime to entice into prostitution or carnally "defile" a girl under 17 years under a threat of 21 years gaol (s 132). In the ACT Criminal Ordinance the employment of a girl under 18 years in a brothel is illegal, bringing indictment of up to five years gaol (s 91D). In the Queensland Criminal Code the procuring of a girl under 18 years for "unlawful carnal knowledge" (or prostitution) can result in two years hard labour (s 217 ). In the SA Criminal Law Consolidation Act the employment of a girl under 17 in a brothel carries a penalty of up to seven years gaol (s 65). In the WA Criminal Code allowing a girl under 21 years in a brothel can result in a penalty of two years hard labour (s 194). A common defence of brothel managers charged under the above laws is that they were led to believe the girl was much older, but rarely do these succeed in courts of law. More likely successful defence is achieved in the case of a client in street prostitution who claims he believed a girl was older than the legal age of consent, particularly if she is only a year or two younger than the legal age. Inscribed into these attitudes are popular notions that brothels are places of entrapment for unwitting females, while on the streets women go wilfully "beyond the pale" of "common decency" and attract less sympathy. Also, the age of consent statutes. were designed to protect a female's virginity, whereas, quite obviously a teenage prostitute has no virginity to protect, but even here there is a toleration point. The excuse of being duped into believing a girl is older "than she looks" no longer holds when a girl is under 14 years, and courts generally take the dimmest view of all to girls of 13 or less prostituting themselves on the street. Then the prostitutes are no longer held to blame, but the clients are, for encouraging innocent children to have sex with them.
Whilst the above represent the laws controlling prostitution in the criminalising legislation of Australia, Western Australia is a special case. Although its laws, like the other states and territories above, are ostensibly aimed at eradicating prostitution through criminalising the activities associated with commercial sex, it adopts a practical approach to the "problem" of regulation through an officially recognised "containment and toleration" policy. In the words of Commissioner Norris of a Royal Commission investigating the prostitution legislation in Western Australia in 1976, this policy evolved from the practices of the Consorting Squad "to control and contain the evils associated with prostitution." (Western Australia 1976). In effect it is a "necessary evil" approach, but with the use of laws of prohibition. It requires the police to turn a blind eye to the existing legislation in some instances and enforce it in others. The manipulative and discriminatory nature of this police practice is quite obvious, but it does enable a certain amount of practical application for police control over prostitution. Police have limited the number of brothels to some 15 in Perth and four in Kalgoorlie, and nine escort agencies: street prostitution is simply unacceptable.
Under this contradictory policing system, tolerated brothels are provided police protection in exchange for information on drug dealers and criminal activities. Workers in these brothels are required to register at a police station, providing their names, personal details and photographs. In Kalgoorlie they are closely scrutinised and their movements restricted:
The women are not allowed to have relatives within a 500 kilometre radius, cannot have their brothers to visit, are not permitted to have stable relationships with local people and they are restricted to certain areas of the town. The are not allowed inside any hotel ... or in private homes unless accompanied by a chaperone. The local TAB is out of bounds and access to the swimming pool is restricted. They are subject to dusk to dawn curfew, and there is an unwritten convention that they don't attend social functions in the town. The women must live in one of the brothels (Marshall 1986, p. 9).
Unlike legislated "legalisation", this kind of police control dictates terms and makes demands that are both humiliating and discriminating to prostitutes and "madams" in the business. In some respects prostitution legislation in Western Australia is the most oppressive to prostitutes in this country, for it not only possesses laws making prostitution activities illegal, but an official police manipulation is also condoned. In addition, the Local Government Act 1960 s. 206, enables Councils to pass by-laws restricting or prohibiting brothels and "brothel keeping" in municipal zones.
In 1982 the Western Australian Criminal Law Revision Committee established a working party to review the state's prostitution legislation. Recommendations for "decriminalisation" with planning regulations were made and for removing the term "common prostitute" from the statutes. No legislative changes occurred following this report (Criminal Law Revision Committee 1982). In 1991 a Western Australian Community Panel on Prostitution has made recommendations to repeal the current laws and to introduce a licensing system for brothels, escort agencies and single prostitutes premises. The South Australian Government also conducted an inquiry into prostitution and its report was tabled before Parliament in February 1980 (SA Select Committee 1980). The recommendations of this report demonstrated a bold advance in parliamentary thought at the time. It called for a repeal of all present prostitution laws, for the legal right to operate a brothel in a nonresidential area, for a right to discreet advertising, and for the right of prostitutes voluntarily to support whomever they desired. It was referred to as a "decriminalisation" but the restricted zoning of brothels, and the retention of the laws on street soliciting, meant that it was a form of "legalisation" instead. The "Millhouse Bill" (named after the member of the Legislative Assembly who presented it) came before Parliament with the proposed legislative changes in accordance with these recommendations and was defeated by a narrow margin (Private Members' Bill No. 31 1980).
In 1986 the Hon. Carolyn Pickles, MLC, also introduced a private member's Bill calling for "decriminalisation" to the South Australian Parliament. Its proposed laws included limited advertising, and the approval of "small brothels" (with not more than two prostitutes at the same time, and not more than two bedrooms) provided these were not in residential zones or near churches and schools. But, like its predecessor, soliciting and "loitering... for the purpose of prostitution", were prohibited. The "Pickles Bill" was defeated by a single vote (Private Member's Bill No. 18 1986). Quite obviously, at the time, the South Australian Parliament was in a frame of mind to seriously consider changes to the law to enable a form of "legalisation".
In the post-war years and the 1950s the Queensland Government developed a "toleration" policy on prostitution that allowed the establishment of "red light" areas in inner Brisbane and the north coast town of Townsville, as well as the introduction of brothels to the Gold Coast (Winter 1976, p. 46). However, soon after the Country-Liberal Party came to power in 1957 the attitudes of the former Labor Party Government were reversed, with enforcement of existing legislation and the closure of brothels. Since then Queensland has dealt with the existence of prostitution (usually submerged beneath the cover of "massage parlours") with a heavy hand. But situations have been so repressive that police corruption became a major problem and the Government had to respond to public allegations with a Royal Commission to investigate police "extra-curricula activities" in a hotel well-known for its prostitutes in 1963, and again in 1986 with the Fitzgerald Inquiry (1986-89) to investigate claims of police corruption.
The Queensland situation highlights a major criticism of the prohibition approach to prostitution legislation: that harsh laws invite police corruption. This kind of corruption derives from a common belief among police that prostitution is inevitable regardless of how strictly the laws are enforced; it then becomes a matter of police regulating rather than eradicating commercial sex activities, and, without the legal means of such regulation individual policemen resort to demanding payment to "turn the other way". Soon this kind of corruption involves most officers whose duties include the apprehension of prostitutes contravening laws, until it becomes an institution within the police force, rationalised as a normal way of dealing with prostitutes who would otherwise be constantly before the courts or continue to work in clandestine operations difficult for police to detect. The confidentiality of police involvement in corruption inevitably has to involve prostitutes and brothel managers under threats of silence. The case of Shirley Brifman, a Sydney prostitute who managed brothels in Brisbane as well, serves as an object lesson. When she threatened to expose 34 detectives for receiving payments from her she was found dead from an "overdose" in a Brisbane flat in 1971 before she could appear as a court witness on the matter (Wilkinson & Bacon 1983; Bacon 1983).
Police claims of difficulties with detecting and identifying brothel managers, pimps and clients, lead to prostitutes bearing the brunt of arrests and payments to police. Attempts by women to avoid both, results in the development of clandestine operations such as "massage parlours", subterfuge on the 'phone, and mobility among streetwalkers. Arresting officers counteract these with entrapment methods, such as pretending to be a potential client.10 Prostitutes then devise a number of ploys so as not be trapped. Making a client get completely undressed before discussing sex, and checking the contents of a client's clothing while he is showering to see if he carries anything that might identify him as a policeman, are two common procedures of prostitutes before making any incriminating comments. Another ploy, that of having the client place the fee on a table and leaving the room before the prostitute took possession of it, was the subject of a South Australian Supreme Court case. The arresting officer charged the woman before she touched the money but the court acquitted her of the charge because she had to have taken possession of it before committing an offence (Samuels v. Warland  16 SASR 4 1).
A glance at Table 2.2 will indicate the extent of arrests for prostitution-related offences in each state.
Given that the pro-rata probability of prostitute populations in community populations across Australia is unlikely to vary much, Table 2.2 indicates a decided lack of consistency of police enforcement in jurisdictions with prohibitionist legislation. Obviously, there are political and ideological factors involved in which Queensland has the highest level of intolerance, and Tasmania the lowest.
In the Territories arrests have been almost negligible. One newspaper in 1985 claimed that no arrest for prostitution had taken place in the ACT since 1978 (The Canberra Times, 18 December 1985). In correspondence with the Federal Police, they advised on 5th October 1989 that no arrests were made in 1987-88 and two convictions for "managing a brothel" occurred in the five preceding years. The Northern Territory Police advised on 30th October that they too had made no arrests in the five years prior to 1987, and no convictions occurred in 1987-88. In 1988-89 a charge each was laid for "keeping a brothel" and "living on the earnings", but these were dismissed or withdrawn. In both areas police admit to the existence of prostitution, but they appear to pursue an unofficial toleration policy provided the industry remains invisible and unobtrusive. Consequently, no street prostitution is known in either Territory.
Table 2.3 compares the arrests for prostitution-related offences in Tasmania, Western Australia and Queensland.
The Tasmanian figures seem to support a long-held contention by the state's authorities: that prostitution is rare on the island. More likely, however, is the fact that prostitution which remains clandestine is ignored, while the visible "soliciting and loitering" forms of prostitution are quickly dealt with. In Western Australia, in spite of its "containment and toleration" policy, arrests for "keeping/managing a brothel" still occur. Undoubtedly, these were instances of persons attempting to establish premises for prostitution without reference to the police first, and most likely were independent women operating outside the brothel system. The significant increases in "soliciting/loitering" are not easily explained since it is hardly likely that a sudden influx of street prostitution occurred. It may have been a blitz on a handful of street workers in a police response to a renewal of official discussions on "decriminalisation" and "legalisation" in 1988. The disproportionate rates of arrests of prostitutes, "brothel keepers" and "pimps" (more likely husbands or lovers) in Queensland with probably no more than 50 per cent more prostitutes than Western Australia and the same laws as that state, indicates a much higher level of intolerance. Certainly, this police pressure has not eradicated prostitution, as indeed both the laws and the enforcement reflect this intention. The fluctuations seen in the figures are due to political factors rather than effective enforcement. The 920 arrests in 1986-87 represent a peak in the last four years. It is 24 per cent higher than the 748 arrests for 1985-86, and 95 per cent higher than the 472 arrests for 1987-88. No doubt 1986-87 witnessed exceptional police activity with regards to prostitution arrests because this was a time when the Fitzgerald Inquiry on police corruption was at its publicity height. Significantly, though, it was the prostitutes who received the major impact of this "blitz". It is also a good example of state manipulation of laws in a jurisdiction with repressive legislation which is applied at will.
The situation in South Australia offers an interesting comparison with both Western Australia and Queensland. Its legislation is slightly different to the phraseology of these other two states and there is no "containment/toleration" policy. Table 2.4 indicates arrests in South Australia for the 1980s.
Compared to the Queensland figures above (which fluctuate by 50 per cent) the South Australian figures are more stable (with a fluctuation of 30 per cent). There is even no indication of exceptional police activity in 1986 while the "Pickles Bill" was presented to Parliament. Possibly the lobbying of the Prostitutes Association of South Australia in 1984-95 might account for increases on "living on the earnings" and "soliciting". Of the cleared offences for South Australia between 1982-83 and 1987-88, 265 were of females and 62 of males. In common with police the world over, there is a clear police bias towards arresting women. The vast majority of brothel offences involved women as prostitutes or managers, and nearly all of the "pimping" also involved women. Presumably, these female "pimps" were brothel "madams". Once again it is the women's visibility which makes them vulnerable to arrest.
Criminalising legislation which is designed to prohibit prostitution altogether, in practice serves as a mechanism of control reinforcing the traditional power structures of moralism and patriarchy wielding immense suzerainty over women and sexuality. Through its labelling of identifiable "bad women", its enshrinement of female chastity, and its draconian punishments, this form of legislation continues to prop up the ideals of 19th century moralism. After a century of application, this form of legislation no longer serves its original purpose of eradicating commercial sex practices, but plays into the hands of the police and other state apparatus for the purpose of abusive power. Consequently, it should be clear to legislators by now that prohibition laws have outlived whatever moral purposes they were thought to serve in the Victorian notions of propriety and proper conduct.
The legalisation experiment : VictoriaIn 1994 the Victorian Government decided on a bold experiment: the legislated proscription of legal prostitution. More than just a legal attitude changed here. The old statutes, with their draconian rhetoric and stigmatising language, were allowed to die, and a new legal package, full of "vim" and vigour of 20th century liberal rhetoric, took their place. This newcomer to the state's legislature was an omnibus statute, encompassing all that was considered progressive and practical in the regulation of the commercial sex industry. The statute is known as the Prostitution Regulation Act 1986, and it followed a working party on planning for brothel "legalisation" and a most comprehensive and well-researched government inquiry into prostitution. Yet ultimately it failed.
To gain some appreciation of the extent of legislative changes occurring in Victoria between 1984 and 1986, and of the events that led to the introduction of "legalisation", it is necessary to trace the prostitution laws in that state preceding the reform. As we have seen, "importuning for immoral purposes" in a public place was made an offence under the Police Offences Act 1891, s. 7(2), and the procuring of females was a criminal offence under the Crimes Act 1891 ss. 14 & 15. The Police Offences Act 1907 included living on the earnings of prostitution (s 5) and "brothel keeping" (s 6) as offences. Amendments to the Police Offences Act in 1928 included soliciting (s 26), prostitutes assembling in "refreshment houses" (s 30), or behaving "riotously" in public places (s 69), "pimping" (s 79) and "brothel keeping" (s 80). In 1931 consorting was added (s 69131) to the same Act. The next major legislative reconstruction occurred in the 1960s, which began with the introduction of the Prostitution Act in 1961, which amended the Police Offences Act to include the offence of "loitering for the purpose of prostitution" (s 3). In 1966 the Summary Offences Act was introduced as omnibus legislation to include most offences in public places. The main offence for a street prostitute was "for the purpose of prostitution to solicit or accost any person in a public place or loiter in a public place" (s 18). In the next year an offence aimed at clients was added, making it illegal for a person "to loiter in or frequent any public place for the purpose of inviting or soliciting any person to prostitute him/ herself for pecuniary reward" (s 18A). These laws were introduced in response to residents' complaints in the St Kilda area.
The Vagrancy Act was also amended in 1966, and included the offence of "pimping" or living on the earnings of prostitution "wholly or in part" (s 10). The keeping, managing or assisting "in the management of a brothel" was an offence (s 11) under this Act. According to the Victorian Inquiry Into Prostitution "arguably a receptionist who answers the telephone, makes appointments and collects money from clients could be convicted of the offence even though he or she is simply receiving a salary for these tasks" (Inquiry into Prostitution 1985). Prostitutes in brothels or "massage parlours" were convicted under s. 12 of this Act for being an "occupier" of premises used for the purposes of "habitual prostitution". Although "brothel" was clearly defined as any premises "resorted to by people of both sexes... for the purposes of engaging in prostitution" (s 12A), a court decision maintained that use of premises for prostitution on one occasion was not "habitual prostitution" (Fox v. Wade , VR 362). However, in most instances of conviction of prostitutes on premises used for prostitution (even though these were disguised as "massage parlours" and the women as "masseuses") the police produced evidence of constant use, and in any case, as was traditional for prostitutes, the women rarely contested charges for prostitution laid against them.
The Crimes Act as amended in 1958, covered most offences of procuring (s 59). Although this law specifically aimed to protect persons under 18 years from being enticed into prostitution, as well as adults, other clauses in the same Act made it a criminal offence for adults to "sexually penetrate" young people and children, with some defence of ignorance of age, in cases of 16 to 18-year-olds where they had consented and have had carnal knowledge with other people before (s 49), or in cases of 10 to 16-year-olds where they had consented and the offender was no more than two years older than the young person (s 48). These laws might be applicable to clients of prostitutes, especially among streetwalkers, who tend to be younger than brothel workers.
The laws outlined above in the Summary Offences Act 1966, the Vagrancy Act 1966 and the Crimes Act 1958 were still in force in 1984 when the first step in the legislated "legalisation" of prostitution in Victoria occurred with the passage of the Planning (Brothels) Act in Parliament. The events which led to this legal phenomenon, however, are traceable to public concerns for street prostitution as well as brothels. Whilst the most immediate concern of the Victorian Government in 1984 was the spread of brothels into residential communities, the ongoing community debates over street prostitution in St Kilda since the 1950s reached a climax in November 1978 with the formation of a resident lobby, Westaction, ably supported by the Mayor of the local Council. This Organisation held a public meeting on 19 November and claimed that "the residents of St Kilda are under siege" from prostitutes, pimps, drug addicts and customers cruising the area in search of sex. At the same time they presented a submission to the state government, accompanied by a petition of the signatures of 2,000 residents, calling for legal action against the "massage parlours" in the area. Meanwhile, on the streets the prostitutes and their clients were subjected to open abuse and even violence from residents. A very nasty situation was brewing (see Johnston 1984, pp.338-65).
Labor Party MP Joan Coxsedge became interested in the events and after communications with the prostitute lobby group, Hetaira, in 1979, together with the ALP Status of Women Policy Committee, convinced the Victorian State Labor Party to press for a "decriminalisation" of the prostitution laws. This was preferred to the "legalisation" proposals being touted in parliamentary circles at the time (Johnston 1984, p. 345). The Victorian Labor Government seemed caught in a vice of its own making, with party members on the one hand advocating "decriminalisation" and constituents, on the other, demanding tougher criminalisation. It established the Working Party to the Minister for Planning and Environment to investigate the location of brothels. The Working Party's report made a number of recommendations, such as the legitimisation of brothels with properly controlled land use, a licensing (or permit) system, and prohibition of brothels in residential zones. In addition, it recommended an "amnesty period" of up to 12 months to enable adjustments to be made by existing brothels seeking a permit to operate through the planning authorities (Working Party 1983). The Planning (Brothels) Act, which made brothels with planning permits legal, was one outcome of the Working Party's report. The establishment of the Inquiry Into Prostitution was another.
The Inquiry's tasks were to analyse the extent of prostitution in Victoria, assess the current laws as an appropriate mechanism for regulating it, and to submit its recommendations to the state government. The major concern of this government was the extent of community reaction to prostitution; the circumstances of the St Kilda dispute were not a clear assessment of the public response across the state. The Inquiry sought wider community opinions by turning to the various polls. It found that in a survey conducted by McNair Anderson Associates in 1982 59 per cent of Victorians thought that prostitution should be legal. In 1985, in the national survey mentioned earlier (p. 32), 72 per cent of Melbourne citizens agreed that prostitution in premises in certain areas should be legal. Interestingly, among voters 82 per cent of Australian Democrats, 78 per cent of Labor Party voters, 74 per cent of Liberal Party voters and 67 per cent of National Party voters agreed (Irving Saulwick & Associates et al. 1985).
The Inquiry made 91 recommendations to the Victorian Government in October 1985. These included recommendations for the improvement of health and welfare needs of prostitutes, as well as proposals for legal change. But perhaps the general thrust of the Inquiry's Final Report might be seen in the first two recommendations:
Recommendation 1: We recommend that prostitution-related activities should be criminal offences only to the extent necessary
- to prevent harm to prostitutes and those at risk of becoming prostitutes;
- to protect the community from demonstrable nuisance caused by prostitution-related activities.
Recommendation 2: We recommend that the criminal law provisions designed to protect prostitutes should be confined to
- preventing the sexual exploitation of people under the age of 18;
- protecting adult prostitutes, whether male or female, from violence, intimidation or, in certain limited cases, fraud (Inquiry Into Prostitution 1985, pp. 249-5 1).
In summary, the Inquiry made legal recommendations which partly supported existing legislation, sanctioned the idea of legalised brothels and called for partial decriminalisation of present laws. It approved of street prostitution in areas specified by municipal councils and subject to local government by-laws. It recommended the repeal of statutory regulations that criminalised prostitutes in brothels and the owners, management and auxiliary staff of these premises. It felt that living on the earnings and procuring for prostitution should only be offences where violence, coercion, fraud or drug inducement were involved with adult prostitutes and those recruited for prostitution. On the other hand, pimping and procuring in which young people under 18 years were involved as prostitutes, even without coercive methods, was thought to be intolerable and punishable with indictable penalties of up to five years imprisonment. Clients of prostitutes under 18 years should be dealt with nearly as severely. The explicit advertisement of prostitution was to remain an offence, but advertisements for massage parlours and escort agencies were to be limited and legally regulated (Inquiry Into Prostitution 1985, pp. 253-88).
The Inquiry also made recommendations with regard to controlling the brothel industry and with reference to regulation under the then existing Planning (Brothels) Act 1984. This statute included premises owned and used even by a single prostitute, and legally approved of such premises, as well as the larger premises traditionally recognised as "brothels" (such as "bordellos" and "parlours"), only if their owners held permits to operate issued by local municipal councils. In accordance with amendments to the Town and Country Planning Act 1961 and the various planning ordinances, councils considered the issue of these permits in relation to certain location provisions, such as the distance of the brothel from residential zones, churches, schools, hospitals and other community facilities, its proximity to other commercial enterprises, and its size, parking and other facilities. In the case of council rejection of applications for permits, the applicant had the right of appeal to the Planning Appeals Board. The matter would again be determined on the basis of the brothel's location. The Act regulated entitlement to a permit on the basis of the applicant's character. No one, who had been convicted of a drug offence or an indictment of more than 12 months imprisonment could hold a permit, and no brothel owner could hold or have an interest in more than one permit, so that relatives and business partnerships were not allowed more than one permit between them, and only one permit was issued per brothel. In addition, permit-holders were obligated not to conduct any other business on the premises and not to allow persons under 18 years in them (see amendments to the Town and Country Planning Act, ss. 27, 49).
Under the Town and Country Planning Act provisions, brothels without permits to use the land were subject to very harsh penalties amounting to a fine of $600 each day the illegal brothel remained open (s49[1A]. For those with permits, under the Planning (Brothels) Act such offences as "living on the earnings of prostitution", "brothel keeping", leasing premises and using premises for "habitual prostitution" no longer applied to owners, managers, lessors and prostitutes involved with the premises (ss 913).
Whilst the Inquiry agreed in principle with the system of legal brothels, it felt some fundamental changes were necessary to clarify certain provisions of licensing premises in accordance with its desire to improve the legal protection of prostitutes and prevent exploitation. Thus, licensed premises should "exclude criminals from the operation and management of brothels, to protect prostitutes and to prevent adverse environmental effects of brothels. The system should be administered by an independent licensing board" (Inquiry Into Prostitution 1985, p. 329). This board should consist of nominees from each of the Commissioner of Police, the Minister for Local Government and the Minister for Planning and Environment, and its functions should consist of the issue of licences to appropriate persons without criminal connections, or drug offences and convictions for indictable offences within the previous five years; to operate premises as a brothel; provided it is not within close proximity of residences, schools, churches, hospitals or other community facilities. Abuse of any of the provisions and privileges attached to the licence should render the licensee liable to a penalty and improper management to revocation of the licence (Inquiry Into Prostitution 1985, pp. 330-5).
The Inquiry recommended that towns of less than 20,000 people should be given the option to prohibit brothels within provisions of local government by-laws, while for larger urban centres the regulations of the Planning (Brothels) Act should continue to insist on Council approval of brothels in appropriate zones. It also insisted that a single prostitute should be able to use self-contained premises, but not a flat or home unit, as residence and for the purpose of prostitution without the need to possess a brothel licence. But in the case of premises any larger used as a brothel without the proper authority, harsh penalties should continue to apply, and, in line with proposals for greater police involvement in the administration of licences and greater powers of entry to illegal brothels, Magistrates' Courts rather than Supreme Courts should be involved in the legal process of proscribing premises (Inquiry Into Prostitution 1985, pp. 302-23).
One other important regulation was proposed by the Inquiry (I 985, p. 363) with regard to controlling the management of licensed brothels, and this was in relation to protecting the community from irresponsible unhealthy activities in a brothel. In conjunction with existing regulation in the Venereal Diseases Act 1958, which penalises a brothel owner for allowing an infected prostitute to work on the premises (s 26), the Inquiry further recommended that a holder of a brothel licence should be liable for "knowingly permitting" a person infected with a proscribed disease, including HIV/AIDS, to work on the premises.
In general, the Inquiry showed a sympathy for prostitutes and, in recognition of the existing discrimination in the legislation, attempted to divert the law from this discriminatory course with a recommendation for limited and regulated street prostitution and for a repeal of the laws usually applied to brothel workers, and proposed that single prostitutes in premises should be exempt from the licensing regulations and legal sanctions, in obvious support for individual independence. In addition, throughout the report there is a strong call for legal protection of prostitutes. However, there are also some areas of the report which seem to contradict the general trend described above, For one thing, whilst the Inquiry rightly recognises the need for some statutory control of local government in relation to locations for brothels in a clear understanding of a traditional bias against prostitution at the municipal level, it relies on these same municipal councils to suddenly shed their biases in providing specified areas for street prostitution.
By recommending police involvement in the licensing regulation process it indicates a lack of appreciation for the traditional hostility brothel owners and managers and prostitutes feel towards the police, which mitigates against co-operation and may even deepen mistrust. The presence of the police perpetuates the criminal stigma of prostitution in society. There probably is little need to involve police in the administrative aspect of licensing, and if, as the Inquiry suggests, there is a requirement for investigating new applicants, this can surely be done through the co-operation of the criminal investigative methods and records of police without the necessity to involve them further.
The Inquiry is strongly opposed to a "red light" area for a number of reasons, including concerns for prostitutes as well as the community at large. One opposition to it felt that the confinement of brothels to a specific district would result in encouraging the development of discreet prostitution beyond the "red light" area, and would not "accommodate all existing establishments" (Inquiry Into Prostitution 1985, p. 294). But, the limits imposed by the licensing system have managed to generate the same effect, with a development of clandestine establishments (or escorts and private operations) and a failure to accommodate all the existing establishments. Finally, the proposition of non-licensed premises for a single prostitute - whilst a noble gesture much improved on the present criminalisation of independent operators-also legally promotes a situation that is potentially one of the most dangerous for prostitutes. The proposition should have been extended to include two prostitutes at least, so that one woman by herself will not be forced to obey the law thus placing herself in a vulnerable position.
In the introduction notes of the Prostitution Regulation Bill the following explanation is provided:
This Bill is designed to implement the recommendations of the Neave Inquiry into Prostitution. The philosophy underlying those recommendations is that prostitution is an exploitative business which should not be encouraged or promoted. This Bill, and a number of administrative measures to be undertaken by the Government, are aimed at minimizing prostitution and its associated harms. The Bill seeks to provide a comprehensive statement of the statute law governing prostitution in Victoria.
The basic approach of the Bill is as follows:
- To focus the criminal law relating to prostitution on exploitative practices. In the case of adults, the Bill adopts the principle that prostitution-related activities should be subject to criminal penalties only to the extent necessary to protect adult prostitutes from violence and intimidation. In the case of young people, the present criminal law has been strengthened so as to ensure, as far as possible, that they are protected from abuse or exploitation.
- To instigate a stringent system of licensing of brothel operators so as to exclude criminals from the management and operation of brothels.
This Bill entered Parliament on 23rd October 1986, and passed with parliamentary concession as the Prostitution Regulation Act 1986. It repealed the Planning (Brothels) Act, and amended or repealed sections relevant to prostitution in the Town and Country Planning Act, the Health Act 1958, the Crimes Act 1958, the Maintenance Act 1965, the Summary Offences Act 1966, the Vagrancy Act 1966, the Liquor Control Act 1968 and the common law offence of keeping a "disorderly house". In other words, prostitution regulation was streamlined in an omnibus statute. An outline of the Act is as follows.
The soliciting laws in the Prostitution Regulation Act were transferred almost intact from the Summary Offences Act. It is an offence to "solicit or accost any person" or "loiter in a public place... for the purpose of prostitution", with, for a first offence a fine of five penalty units11 or a month in gaol, for a second offence, 15 penalty units or three months; and, for a third or subsequent offence, 25 penalty units or six months (s 5[l]). Similarly, the previous laws on clients' loitering, soliciting or inviting a person in a public place to prostitute him/herself, along with the same penalties as above, were also transferred intact (s 5).
It is the laws on "child" (under 18 years of age) prostitution which are both revamped and given harsher penalties that are a major feature of the new Act. For "inducing" a "child" to take part in an act of prostitution, a person faces a penalty of seven years imprisonment (s 6[l]). Anyone owning, managing or occupying a brothel (even a legal one) who allows a "child" onto the premises either as a prostitute or as a client is liable to four years imprisonment (s 7[l]). For receiving payment from a "child" from the proceeds of prostitution can bring seven years imprisonment (s 9). In each of these laws the accused has a defence if he/she has "taken all reasonable steps to find out the age of the person concerned" and "believed on reasonable grounds... that the person concerned was aged 18 or more".
Procuring adults for prostitution through the use of violence, coercion, drugs or fraud can bring seven years imprisonment (s 10), and forcing another person to provide payment from prostitution also through the same methods can bring the same penalty (s 11). But simply living on the earnings of another's prostitution without the use of threats. drugs or fraud can also result in four years gaol (s 12), unless the accused is exempt from this law as owner, manager or authorised staff of a legal brothel (s 12). Anyone who is "living with, or is habitually in the company of, a prostitute; or ... has exercised control, direction or influence over the movements of a prostitute" is deemed to be "aiding, abetting, procuring or compelling the prostitute to prostitute him/herself" and therefore living on the earnings for the purposes of the law (s 12).
Under the Act it is also an offence for an owner, manager or other authorised person in control of a brothel, whether it is licensed or not, to "knowingly" permit a prostitute infected with a sexually transmitted disease (including HIV/AIDS) to work in the place, with a fine of 20 penalty units (s 13), unless they can prove to the court that the infected person was not infected at the time of the alleged offence (s 13). It is also an offence for a prostitute to work with the knowledge that he/she is infected and is subjected to the same penalty as the owner (s 13).
The advertising of prostitution services via the print or electronic media, or the publication of advertisements seeking employment for prostitution, either as a prostitute or other staff in the same service, are offences, each bringing 40 penalty units (s 14-). Under s. 14 the "Governor in Council" may regulate advertisements for prostitution as to "size, form and content" or "any class of prostitution services", or prohibit such advertising in certain publications or of "any class of prostitution services" (s 14).
Anyone who operates an unlicensed brothel (being, in the meaning of the Act, any premises in which people resort for the purpose of prostitution, regardless of size or numbers of persons) is liable to a very serious offence, with maximum penalties of 60 penalty units or 12 months imprisonment for a first offence, or 90 penalty units or 18 months imprisonment for a second offence, and 20 penalty units for each day the owner, manager or other person in charge continues to operate the place after conviction (s 15). If a licence holder operates a legal brothel with a partner or associate who is not licensed to operate it, the licensee is liable to a penalty of 60 penalty units or 12 months imprisonment (s 16). If a legal brothel is not personally supervised by the licence holder or a manager approved of in the meaning of the Act, it is an offence carrying a maximum penalty of 20 penalty units or six months gaol (s 17-), unless it can be proven to the court that the proper supervision was assumed to be taking place at the time of the alleged offence.
The Act requires a Brothel Licensing Board, consisting of a member nominated by the Chief Commissioner of Police and a member each nominated by the Attorney-General and the Ministers administering the Local Government Department Act, the Town and Country Planning Act, Part II of the Health Act, and Section 5 of the Community Welfare Services Act, whose functions are to approve of applications for brothel licences and of persons as brothel managers, to issue licences and supervise their three-yearly renewals, to revoke or suspend licences where deemed fit, to order investigations by the police of complaints from prostitutes and others about the manager or management of a brothel, and to liaise with and assist police where necessary in their duties in relation to prostitution (ss 18-19).
Persons considered as eligible for a brothel licence must be 21 or more years of age, and not to have been sentenced for a drug offence nor indictable offence of more than 12 months imprisonment nor served a gaol sentence for at least five years. Also they must not be an associate of a similar offender or detainee and have not had a previous brothel licence revoked. Associates in the meaning of the Act include spouse, defacto partner or business partner.
Applicants for a new or a renewal (every three years) licence are required to supply the Board with his/her name and address. as well as those of the property owner and any appointed manager of the brothel, a permit to use the land for a brothel under the authority of the Town and Country Planning Act, and the prescribed licence fee (ss 22-26). The Board has the power to cancel or suspend a licence in such instances of the licensee being convicted of a drug or indictable offence, an abuse of land use contrary to the conditions of the Town and Country Planning Act, and a licensee's involvement with people in the management of the brothel in contravention of the conditions of licensing (s 27). Once a licence is revoked and the brothel is not occupied by another licence holder, the police may apply to a Magistrate's Court to declare the premises a "proscribed brothel", or illegal for further use as a brothel (s 37). Once this is achieved the police are required to publish the fact in a newspaper (s 38), and prevent occupation for the purpose of prostitution. Anyone "found in or entering or leaving" the premises, unless for a lawful reason, is liable to a penalty of up to 25 penalty units (s 39&), while the owner or occupier is liable to a penalty of up to 60 penalty units (s 40).
The Town and Country Planning Act enables a permit for land use as a brothel to be issued by a municipal council or other authority with certain considerations restricting its location according to, as expressed in the Prostitution Regulation Act s. 50, its size, the number of persons to be employed, and hours of operation, as well as its proximity to a residential building, a church, hospital and other community facility, another brothel, and other operation likely to have similar traffic, noise and operational hours. Under the Town and Country Planning Act s. 49(i) any abuse of land use is an offence by the brothel owner, and police have the powers of automatic entry of premises suspected of being an illegal brothel in the same Act, s. 49A(l). For the purpose of this Act, an illegal brothel is one without a permit of land use, whilst in the Prostitution Regulation Act it refers to one whose owner lacks a licence to operate. Such premises can be declared a "proscribed brothel" and in this Act makes owners, managers and prostitutes (as occupiers) liable (s 40).
Whilst most prostitution laws are now contained within the Prostitution Regulation Act, two laws in the Health Act 1958 should be noted here as relevant to Victoria's overall regulation of prostitution. No medical practitioner must issue a prostitute with a certificate "signifying or implying that the prostitute is not infected with a sexually transmitted disease" (S 139E), and nor must a person use a certificate issued by a medical practitioner for the purpose of prostitution to indicate their freedom from a sexually transmitted disease (s 139E[21). Under the same Act the Governor-in-Council can make certain regulations to insure the cleanliness of brothels, their inspection by health authorities, the provision of information about sexually transmitted diseases for those working in a brothel or visiting it, the availability of contraceptives in brothels, and the safeguard of the health of the prostitutes and their clients (s 141A).
Retrospectively, the Prostitution Regulation Act seems to have fallen short of its intentions described in the introduction to the Bill. It will be recalled that one of the Bill's intentions was "designed to implement the recommendation of the Neave Inquiry". The Act does this most specifically in the regulation of licensed brothels and by harsh laws on procuring with menaces (in fact, the Act increases the penalties recommended by the Inquiry), and, in this respect, the Bill's intention to offer prostitutes protection from violence, intimidation and exploitation is fulfilled. But, whereas the Inquiry recommended a legal form of street prostitution under local government by-laws, the Act implements the previous criminalising laws of the Summary Offences Act. The Inquiry also showed an understanding of certain circumstances in which prostitutes choose to support another (for example, a lover, husband, adult child), and did not recommend the criminalising of persons "living on the earnings" where this was clearly done at the prostitute's free will. The Act, on the other hand, treats all cases of "living on the earnings" as though these were by necessity exploitative of prostitutes. In the case of prostitutes working in brothels, the Inquiry felt that they should no longer be subject to laws which make it an offence to be simply an "occupier" of the premises. However, under the Act, in the case of a "proscribed brothel" its occupation is illegal even for prostitutes. In general, the Act offers prostitutes limited protection from exploitation, while they, as well as their chosen dependents, are dealt with as criminals, except where the prostitute works in a legal brothel (although this still does not prevent the law from convicting a lover or husband for example). Its laws perpetuate old notions based on the mythology of prostitution through their focus on prostitutes' activities per se (regardless of how little harm these might be to the community at large), on drugs, and on an assumed dominance of brothel operations by criminals. Thus, the status of prostitutes, even in a legal brothel, is not improved by the Act, and there is a grudging acceptance of them in legal brothels which appears to be the practical extension of the Bill's aims at "minimising prostitution".
The reactions to the Act and its intended "legalisation" of prostitution by prostitutes themselves is not too surprising. They are heavily critical of its legal encouragement to large brothel owners at the expense of small brothel operators and single operators (whom the Neave Inquiry recommended should be exempt from the law and licensing). A single prostitute cannot afford the permits, rents for commercial premises, the licence, and other accoutrements required to obtain a licence, and if she operates as before she can have her home declared a "proscribed brothel" and herself charged as an ,@occupier" if she continues to work. Whereas legal brothel owners may live on the eamings of their staff, the staff's lovers, husbands and other adult dependents in their families are liable. The entire "legalisation" structure is slanted in favour of big business, capital and entrepreneurs. As one prostitute put it: "The men have got what they wanted. The women are more exploited than ever." (Hutton 1987).
Some women thought they were better off before "legalisation", when police did not "persecute the working girls" for "using premises for habitual prostitution" and, at least, they could defend themselves in court (although few ever did) or pay off police. According to them, police only started "getting tough" after "legalisation" (1984) and demanded real names as opposed to false names which was the practice before. Police, of course, under a legal system which officially legitimises certain forms of prostitution or certain places, are obliged by the government to enforce laws on other prostitution in order to justify the "legalisation". At least, in a system where all prostitution activities are illegal, strategies and relaxation can take place, as we have seen in Western Australia and Queensland. But in the "legalisation" system not only are the legal infrastructures propped up by enforcement procedures, prostitutes are further controlled by a divide and rule tactic of "legal whores" and "illegal whores".
The conviction figures on Table 2.5 indicate a sharp decline in the annual number of arrests from 1991 to 1985. The lowest number occurred in 1985 because this was the "amnesty period" of one year following the introduction of brothel permits in 1984, when no arrests of brothel owners, managers or workers were made.
When the "amnesty period" ended in July 1985 there were 120 brothels in Victoria (apart from two in Geelong, all were located in Melbourne), of which 70 were considered for "legalisation" in 54 applications for permits (inquiry Into Prostitution 1985, p. 161). Following the passage of the Prostitution Regulation Act, only 42 brothels had been granted permits. Two-thirds of prostitution premises had gone out of business, and a large number of prostitutes had been forced into an illegal status in a system purportedly designed for their protection from exploitation. By October 1989, 56 brothels had received licences. Most prostitutes are still working illegally (according to Victorian Police only 500 or about a quarter of prostitutes in the state are working in the legal brothels), while those in legal brothels complain about the increasing greed of licensed owners. With so many women available for work in legal brothels, owners often crowd shifts with workers in order to give clients a wider choice of prostitutes. For the women, though, this increases competition and decreases earnings. Police also claim that crime and drug dealing in brothels have increased since their presence in legal brothels has been disallowed. It would appear, though, that since legalisation there has been a decline in arrests, if Table 2.6 showing police statistics can be considered indicative compared to Table 2.5 on court appearances for the years prior to the end of the "amnesty" period.
Since most of the offences in the Prostitution Regulation Act were yet to be proclaimed, sections in statutes to be amended were still in use. The most interesting figures in this table are the rapid decline in the number of arrests of clients for inviting prostitution compared to the steady increases in arrests of prostitutes for soliciting, accosting or loitering.
Police rules, house rules, zoning, time restrictions (even a "de-registration" period in Switzerland) are all variables of a unique feature of "legalisation": the official control of prostitutes. Once prostitutes become "legal" the state can also enforce its laws on income tax more easily. In criminalising legislation prostitutes can also be controlled through police regulation, but the intention of this legislation is to prohibit the industry of prostitution not to control its activities. Variations of this derive from policing methods. In any case this form of legislation criminalises all prostitutes, managers and owners, and alienates the entire industry from society. But in a "legalisation" system prostitution is repressed rather than oppressed by a process that alienates prostitutes from one another, and co-opts brothel management in an alliance with the state, maintaining control over the sex workers by the same capitalist hierarchical structure that promotes collaboration of management at the expense of workers in any industry.
Prohibition and policing in New South Wales 1908-78While New South Wales was the last state to introduce laws to prohibit the activities of prostitution, it was by no means the most lenient of the states with its prohibition laws and policing practices. In fact, throughout this century it became one of the harshest jurisdictions enforcing this prohibition in the world, with, perhaps, the exclusion of the United States. During this time the various New South Wales governments implemented legislation changes wrought in Parliament in order to deal more effectively with prostitution more often and more extensively than the other states. For seventy years police used a variety of strategies to eradicate prostitution, and when this proved an impossible task they resorted to more unsavoury tactics, such as selection, discrimination and extortion.
As we have seen, before Federation, colonial authorities depended largely on vagrancy laws and the common law of brothel keeping to control prostitution. In 1901 New South Wales introduced its first law specifically aimed at prostitutes, and in its first State Parliament included it in the Vagrancy Act 1902. It was unlawful for whoever,
(s 4[c]) being a common prostitute, wanders in any street or public highway, or in a place of public resort, and in either case behaves in a riotous or indecent manner.
It proved to be ineffectual in stopping street prostitution, and as a misdemeanour offence did not provide police with the powers they sought, or with a harsh enough penalty to be a deterrent. In 1908 the Police Offences (Amendment) Act amended the Vagrancy Act with the inclusion of the first law to deal with a commercial sex activity. This made it an offence for whoever,
(s 4) being a common prostitute, solicits or importunes for immoral purposes any person who is in a public street, thoroughfare, or place.
The authorities perceived "pimps" (in reality the women's lovers, husbands or hired protectors) with almost as high a nuisance value as the prostitutes. So the same amendments included criminalising men who "live wholly or in part on the earnings of prostitution" (s 4[o][ii). The law provided for the presumption that a man lived on a prostitute's earnings "if proven to be habitually in the company of a prostitute and has no visible means of subsistence".
The law provided for a penalty of imprisonment as well as a heavy fine. In addition to soliciting, prostitutes might also be arrested under the Vagrant Act for offensive or "indecent" behaviour (s 8A). "Brothel keeping" was also added to the same Act in these amendments by incriminating whoever,
(s 8B) being the owner, occupier, or agent of any house, room or place, or being a manager or assistant in the management thereof, induces or suffers any female whom he knows to be a common prostitute to be in that house, room, or place... for the purposes of prostitution.
It is unlikely that this law meant "occupier" to include any prostitute on the premises, since the offence is one of "inducing" or allowing a "common prostitute" on the premises, more appropriate to lessors, lessees and "brothel keepers". Table 2.7 shows the number of arrests in the first decade of these laws.
These figures demonstrate the relationship between "soliciting" and "indecent behaviour" arrests. The decline in the latter from 1909 to 1911 is due to a preference by police using the former - at the time a new and untried law. The increases in "indecent behaviour" arrests from 1912 indicate greater police enforcement of the laws in an effort to stamp out street prostitution.
"Soliciting" was not listed in 1915, and from 1919 it was included in general female "vagrancy". The reason for the exceptionally high arrests for "indecent behaviour" in 1915 to 1917 was a maximum effort to eradicate street prostitution in the war years to protect the service men from disease and immorality.
The comparative rates of arrests of male and female "brothel keepers" reflects the greater powerlessness of women in avoiding arrests. It was probably this more than anything else which paved the way for male domination of the brothel trade, which coincided with an increased demand by prostitutes driven from the streets and seeking premises in which to carry on their profession (Golder & Allen 1979-80, pp. 18-19). Not only in New South Wales, but elsewhere, such as England in the 1880s (see p. 54-5) and America in early 20th century (Rosen 1982), female prostitution came to be dominated by males following the introduction of oppressive legislation, for the simple reason that men were in a more powerful position than the "madams" to buy property on a large scale and pay officials and police to "turn a blind eye". Interestingly, "living on the earnings" was not listed as a separate offence. Possibly, so few arrests were made that it did not warrant special mention, and whatever arrests may have occurred were included in the general category of male "vagrancy".
No major legislation was introduced in the 1920s, but increasing female unemployment, due to a collapse of traditional female trades, (Golder & Allen 1979-80, pp. 19-2 1) which resulted in increases in the number of prostitutes, alarmed authorities to such a degree that police enforcement of existing laws was stepped up. Finally. in 1929 the notorious "consorting" law was introduced by the Vagrancy (Amendment) Act, which made it an offence for whoever,
(s 4[j]) habitually consorts with reputed criminals or known prostitutes or persons who have been convicted of having no visible means of support.
It became the chief instrument of the police for arresting prostitutes in brothels. Table 2.8 indicates this trend, along with some other interesting observations for the 1920s and 1930s.
From 1920 the category "female vagrancy" almost exclusively dealt with the law on soliciting, while other vagrant categories were listed under a category of "idle persons". The category "indecent behaviour" also largely included prostitutes' offences, though not exclusively. The relationship between it and "vagrancy" is obvious in the 1930s, when "vagrancy" arrests increased and "indecent behaviour" arrests decreased. Also, with the introduction of the "consorting" law, police concentrated some of their time devoted to the arrest of prostitutes on brothel workers. The two categories "brothel keeping" and "permitting prostitution on premises" is a curious division of the law into those who owned or managed a brothel and those who permitted ("suffered") prostitution on premises. In either case the bias towards arrests of females continued.
While police practices fluctuated in accordance with usage of the various available laws, generally the number of arrests of prostitutes in the 1930s declined from the earlier decade. However, whereas prostitutes received 120 prison sentences for "vagrancy" in the 1920s, they received 366 such sentences for the same offence in the 1930s, as well as an additional 109 gaol sentences for the new law of "consorting". Thus, whilst prostitutes were being arrested less often, when arrested it was for offences likely to result in a harsher penalty and with greater chances of imprisonment. The courts were not responsible for this, since in the 1920s the ratio of gaol sentences for all court appearances was one in every three arrests, while in the 1930s with the police using more "serious" offences to arrest prostitutes the ratio of sentences in court appearances increased to one in every two arrests.
During the Second World War the New South Wales Government, out of a concern for American servicemen stationed in Sydney falling prey to chicanery and swindling, passed the Disorderly Houses Act 1943. The broadest definition of "disorderly house" was adopted for this statute.12 Police soon began applying the Act to close Sydney brothels under the following section:
(s 3[l]): Upon the affidavit of a Superintendent or Inspector of Police showing reasonable ground for suspecting that all or any of the following conditions obtain with respect to any premises, that is to say -
- that drunkenness or disorderly or indecent conduct or any entertainment of a demoralising character takes place on the premises, or has taken place and is likely to take place again on the premises;
any judge of the Supreme Court may declare such premises to be a disorderly house.
This provided police with much wider powers over brothels than at any time previously. But "brothel keepers" simply adopted the ploy of moving house just prior to the judgment in court. It would prove to be a greater inconvenience to the police than the much simpler procedure of arresting the most visible and vulnerable personnel in prostitution - the prostitutes. Although this never assured them of removing the places of prostitution.
In any case the bulk of prostitution in the war years occurred not in brothels, nor even on the streets, but in pubs, bars and at private parties arranged for the Americans to meet women. And the prostitutes in these clandestine situations did not identify as "whores". They referred to themselves as "good time gals" and the "Yankee dollar" was their major objective. Maggie, who worked as a "good time gal" at the time, recalls what it was like:
There was a lot of money about in those days. The Yanks were here and they were good with their money, buy you anything you wanted. Prostitutes were always the street girls. We saw ourselves as "gold diggers" or "good time girls". I've never worked the streets.
In the post-war years, with the influx of migrant men from Europe, potential customers for prostitutes were even more numerous than they had been in the war. Many of these men arrived in Sydney either before their families or as single men, and since there was a general racial bias against them by most Australian women, they sought to relieve their loneliness by seeking out prostitutes. To grasp some understanding of this situation the following statistical profile is given. In 1947 12.8 per cent of Sydney dwellers were foreign born. By 1971 this had almost doubled to 24.9 per cent. The most disproportionate sex ratios among migrants were found with those originating in Mediterranean and East European countries, with 1.3 Polish men, 1.3 Yugoslav men, 1.1 Greek men, 1.2 Italian men and 1.2 Maltese men for every female counterpart in Australian cities in 1971 (Price & Pyne 1977, pp. 335-6). Based on the migrant figures and the above ratios, the calculated surplus of migrant men in Sydney in 1971 would have been 1,252 Poles, 3,642 Yugoslavs, 1,233 Greeks, 4,359 Italians and 1,403 Maltese. But, of course, not only unattached men visited prostitutes during the period; although they may have been the most frequent visitors.
The police statistics for arrests in the post-war years and in the 1950s are as follows:
The rate of arrests began to escalate after 1952, probably in response to increasing prostitution activities as demands by the migrant influx became apparent. In 1959 nearly 5,000 arrests for "offensive behaviour" mainly of prostitutes occurred, compared to less than 1,400 10 years earlier. In 1951 the police listed "soliciting" and "living on the earnings" separately to "vagrancy", which thereafter declined in number as it referred specifically to "without lawful subsistence". But arrests rose across the board, except "soliciting", which seemed to fluctuate for some unknown reason, although, no doubt street prostitutes were finding themselves being increasingly charged with "offensive behaviour". The most dramatic increase occurred among brothel prostitutes arrested for "consorting" when the 1953 figure rose to over 376 per cent of the previous year; obviously a blitz year for brothel workers. Once again there is a strong female bias, with the 217 male arrests for "living on the earnings" and "permitting prostitution on premises" being a mere 0.7 per cent of the 30,765 prostitution-related arrests for the 1950s. As with the pre-war practice of sending prostitutes to gaol as a means of eradicating commercial sex, in the period 1945-1959 231 prison sentences were issued by the courts for "soliciting" and 424 for "consorting".
In the 1960s the prostitution industry in Sydney reached its pinnacle. According to one writer the most popular area of commercial sex was in the little houses of the East Sydney lanes, where, in 1968 some 40 small brothels with about 130 women working in them represented a third of all prostitution in the city (Winter 1976, p. 35). One ex-worker in these houses, Karen, remembers what it was like:
It was packed like a football oval at times. The madams often held parties to which top personalities were invited. Everyone used to come down there to have a look. There were rows and rows of little houses with two rooms. You had a madam and also had to pay a sitter. We all looked glamorous and went to the best boutiques for our clothes. We would stand outside our houses and wait for the men who strolled along the laneways. A lot of girls were on with big time crims, and after I broke up with a policeman I was on with a famous crim.
By this time some of the migrant men had earned enough capital to invest in the brothel trade. East Sydney became an area dominated by Maltese migrants. One of them, Joe Borg, who arrived in Sydney about 1950, epitomises their involvement in prostitution. By 1968 he is thought to have owned 17 little houses in East Sydney, which he operated or let as brothels, employing about 40 prostitutes. He was the biggest brothel owner since Tilly Devine in the 1920s.
But his meteoric career came to an abrupt end on 28th May 1968 when he was blown up in his car outside his North Bondi home. Two other Maltese men were charged with his murder and convicted to 20 years imprisonment. At Borg's funeral a woman, presumably one of his employees, placed a wreath on his coffin bearing the message: "In memory of Joe Borg, who done a lot of good for a lot of good people." (Winter 1976, pp. 96-109).
The sudden rise in the brothels of East Sydney, the Maltese involvement in prostitution, and the gangland slayings of Borg and others, led to reactions from local residents, morality organisations, the police and the government. In 1962 lobbying by the Council of Churches stirred the Heffron Labor Government to use police powers to close down the brothels just before a state election. But as soon as the election was over, they opened up again. Police tried to reclose them with the Disorderly Houses Act, but Supreme Court and Court of Appeals decisions in 1966 demonstrated the limitations of this statute in declaring a brothel a "disorderly house", and the case was dismissedl3. Since the case involved a single woman working as a call girl in a flat, there followed a flourish of one-woman brothels in East Sydney.
On the night of 23 February 1968, the eve of another state election, police amassed their biggest ever brothel blitz by blocking all exits from the East Sydney lanes and then swooping down on all and sundry. They managed to herd 168 customers and sightseers, and only 17 prostitutes (most had escaped) into waiting paddy-wagons on charges of "offensive behaviour". Ultimately the show of brute strength failed in its objective, and the Askin Liberal Government had to resort to other strategies for eradicating prostitution. Table 2.10 indicates the extent of police enforcement for the 1960s.
A glance back at the previous arrest figures will demonstrate that this period was the most oppressive for prostitutes and owners and managers of brothels. The "offensive behaviour" rates of arrest reached an unprecedented high. In 1964, 14,850 arrests of prostitutes occurred for "soliciting", "consorting" and "offensive behaviour". Taking Wilson's estimated population of Sydney prostitutes of 500 for that time, (Wilson 1971, p. 66) that would average nearly 30 arrests for each woman. Of course, many prostitutes, protected by pay-offs or influential lovers, would not have been arrested, and many others would have been arrested only a few times. Ultimately, the brunt of these arrests would be home by a minority of the most troublesome women in a clearly discriminatory policing practice. In 1985 in cities over twice the size of Sydney, such as New York, Los Angeles and Chicago, arrests of prostitutes amounted to 1 1,700, 15,000 and 6,560 respectively. In the 1960s police harassment of prostitutes in Sydney was probably one of the heaviest in western countries. On the other hand, the ratio of gaol convictions dropped considerably, with, for example, only seven such penalties being imposed on prostitutes "consorting" from 1962 to 1968. The reason for the sharp decline in arrests for "offensive behaviour" after 1966 was probably due to police spending more time on arresting owners and managers of brothels, as the rise in arrests for "permitting prostitution on premises" indicates. Police attention in this area most likely was a response to the frustrations of failing to gain success with "disorderly house" applications in 1966. Once again it was the female managers who bore the brunt of this attack on the brothels.
In October 1968 the Askin Liberal Government pushed through Parliament the Vagrancy, Disorderly Houses and Other Acts (Amendments) Act in a desperate attempt to deal with prostitution (among other offences) legislatively. By these amendments the language of the Vagrancy Act was "modernised" substituting the term "common prostitute" with "known prostitute", and adopting a non-sexist tone in the offence of "pimping" so that females might be included. But further laws were also added to provide police with additional powers. Under the Vagrancy Act it was now an offence to "loiter for the purpose of prostitution" (s 4[k]), or for a "known prostitute" to be on, or simply suspected of being on, "premises habitually used for the purpose of prostitution or of soliciting for prostitution" (s 8BA). To deal with the rising number of brothels disguised as "massage parlours" a new law was added to the same Act, making it an offence for whoever
(s 8BB) uses for the purpose of prostitution, or of soliciting for prostitution, any premises held out as being available for the provision of massage, sauna baths, steam baths, facilities for physical exercise, or services of like nature.
As well as the amendments to the Vagrancy Act, the Disorderly Houses Act was amended with the addition of a subsubsection that would overcome the kind of court decision delivered in 1966. In other words a "disorderly house" now also meant
(s 3[e]) that the premises are habitually used for the purpose of prostitution, or that they have been so used for that purpose and are likely again to be so used for that purpose.
This would become, along with the laws on "using premises for prostitution" and "using massage etc. premises", the key legislation in the government's harassment of brothels.
The 1968 amendments were only the beginning of a government plan to "get tough" with prostitution (and other public offensive behaviours). In 1970 it repealed the old Vagrancy Act and replaced it with the streamlined omnibus statute, the Summary Offences Act. Under this Act "soliciting" or "loitering" for prostitution (s 28), habitually using premises for prostitution by a "reputed prostitute" (s 29), and using "massage" premises as well as those "held out as being available for the taking of photographs or as a photographic studio" (s 30) continued to be offences. Whilst "living wholly or in part on the earnings of the prostitution of another person" applied to either sex (s 31), it only applied to males where he "lives with or is habitually in the company of a reputed prostitute and has no visible means of support" (s 31). An owner, manager or other "who knowingly suffers or permits the premises to be used for the purpose of prostitution" (s 32) were included as offenders, but landowners had the legal means to avoid arrest by ordering the eviction of anyone from their premises on "reasonable grounds" for suspecting prostitution was being conducted. In addition, prostitutes could also be arrested for "offensive behaviour" (s 7),"vagrancy" or being "without lawful means" (s 22), and for "consorting with reputed prostitutes" (s 25).
As well as being part of the government's five-year determination to eradicate prostitution, there was also a motive to "clean up the Cross" with a focus on street prostitution, which had grown in extent in the Kings Cross area with the influx of American servicemen on "rest and recreation" leave from Vietnam. Bonnie, a street prostitute who worked in the early 1970s, described the situation thus:
Soldiers on R & R were around then and it was pretty easy to pick up a guy on the street and take him home. You only had to walk out of your flat and they would be there.
Police became heavy-handed at times, and the strategy of prostitutes was to avoid arrest at all costs, as brothel worker Lee explained to me:
Whenever blitzes were on they had to make arrests and sometimes they would come smashing in doors. When a blitz was on you took off. You didn't wait for them to come knocking. You flew out the back, over fences, and up streets, because with blitzes the fines were heavier, the bail was heavier and sometimes you were refused bail altogether.
The arrest figures for the 1970s show a quite different pattern to the decade earlier. Obviously police were under instructions to concentrate on the more visible aspects of the prostitution industry. Table 2.11 uses two statistical methods, which are not easily integrated, and in addition to changes in police policy, it should be treated with more caution than the previous tables.14
The sky-rocketing of "soliciting" arrest figures from 1970 to 1971 is, no doubt, a change in police attitudes towards street prostitution following the introduction of the Summary Offences Act, with its clear focus on street and public offences. A comparison with the arrests for soliciting or loitering of prostitutes in England and Wales at the same period will indicate the extend of policing in Sydney. Between 1975 and 1979 an average of approximately 3,000 arrests for soliciting or loitering a year occurred in England and Wales (McLeod 1982, p. 24) Dufing this period about 200 English prostitutes were imprisoned for these offences a year (prostitutes in England were automatically given gaol sentences on a third offence of soliciting), but at least three times this many prostitutes would have been fined or given recognizance only. In Sydney perhaps no more than I 00 women worked the streets at the time of these arrests, and in 1972 they were arrested on average nearly 43 times each. One study found 650 women received 4,681 fines for prostitution-related offences in 1975-76 (Aitken 1977). The astonishing number of women arrested for "permitting prostitution on premises" in 1970, compared to the most disproportionate pattern of the preceding and succeeding years' figures for the same offence, can only be explained as a major one-year blitz on brothels, which, of course, caught the visible female managers and not the invisible male owners. The year after there was a return to the pattern of the late 1960s, but then there was a decline in the arrests of both sexes for "permitting prostitution on premises". The "vagrancy" offences seem to be an alteration of categories rather than a shift in the focus of charges. The total number of female "vagrants" recorded by police statistics in accordance with the old system of arresting poor women as "vagrants" was only 41 in 1970-71, and since prostitutes were being arrested for "soliciting" or "consorting" these were probably not prostitutes. The court figures for "vagrancy" may be composites of "consorting" and "offensive behaviour" arrests. In any case, the police statistics for 1970-71 indicate that arrests for "consorting" and "offensive behaviour" were declining in favour of "soliciting" and, quite likely, "permitting prostitution on premises" (which may very well have been aimed at prostitutes by some fancy legal juggling).
In 1972 prostitution-related arrests peaked for the decade. But thereafter there was a rapid decline in arrest figures in all areas of prostitution. This might be explained by the Askin Liberal Government realising its fruitless attempt to stamp out prostitution, or due to a decline in street prostitution following the demise of "rest and recreation" leave as the Vietnam War petered to its end. In any case, in 1976 the Labor Party was returned to power, and with it came libertarian views that would make radical changes to the prostitution legislation. Certainly the previous years' policing tactics clearly demonstrated that the eradication of prostitution was impossible. The harshness of the laws and the abuses of police practices in the past seventy years was a major practical impetus for the reconstruction of legislation that was to follow.
Towards decriminalisation : New South Wales in the 1980sAs a term, "decriminalisation" only has meaning in the context of existing laws that criminalise particular persons or actions, and as a concept it is antithetical to legal sanctions prohibiting those actions. In prostitution, then, it refers to a legislative action removing legal restrictions of prostitutes' activities or of the means of earning through prostitution. The only Australian state to attempt this legislative development was New South Wales. In the early 1980s this legislative solution offered an alternative to the "legalisation" of Victoria and stood in direct contrast to the criminalising laws of other states. So far as prostitutes were concerned it was the complete reversal of the harassments of the 1960s and 1970s. The romanticist might easily assume that the state government had a "change of heart" by trying to rectify years of oppressing this small group of women.
The reform, however, occurred neither as an outcome of romantic vision nor of conscience. It was a response to ideological changes developing from the civil rights movement of the 1960s, and the growth of feminism and the libertarian view on "victimless crimes". In 1977 the Royal Commission On Human Relationships (1977) proposed the "decriminalisation" of prostitution, and the Wran Labor Government invited public discussions on this and other matters. In 1978 the NSW Women's Advisory Council to the Premier presented a paper with evidence of the costs of law enforcement and court proceedings far outweighing the amount of state revenue from fines for prostitution offences. This provided a pragmatic reason for law reform for the conservative element in Parliament, while the libertarian left responded to the humanitarian rationale for a revision of the prostitution legislation. The outcome was a revolutionary reconstruction of the legislation in 1979.
The Summary Offences Act 1970 was the first casualty in the reconstruction. Its repeal meant the introduction of three statutes to deal with public offences, unlawful assemblies and prostitution. Of these the Prostitution Act 1979 is of interest here. It was a greatly modified version of previous prostitution legislation, holding to the principle of prostitution as victimless, except where prostitutes were no longer legally prevented from free choice. The activities of prostitutes selling sex were no longer considered immoral nor socially wrong, although the sentiment among legislators that prostitution was demeaning and degrading to womankind prevailed. Thus, under a rationale of freedom of choice, adult prostitutes were deemed responsible to no one but themselves. The new statute therefore contained no laws making soliciting, consorting, or using premises (other than a massage parlour, health studio or photographic studio) for the purpose of prostitution illegal.
Under the same rationale no situations should be allowed to impede prostitutes' indulgence in their own choice of conscience. Thus, the laws pertaining to "pimping", "brothel keeping" and the procuring of someone for prostitution involuntary would be retained. The legislators demonstrated a naivety in assuming that all acts of "living on the earnings of someone else's prostitution" was by its nature an exploitation of all prostitutes, that anyone who owned or managed a brothel was necessarily abusing their workers, and that procuring was always the involuntary recruitment of women (and men) for prostitution. It is unlikely that the legislators nurtured some idealised vision of a pre-1908 legal situation, but the legislative changes of 1979 were effectively the first positive step towards total decriminalisation in Australia, and the Prostitution Act the first statute to free prostitutes from the law.
The Act continued to prosecute those living on the earnings of another's prostitution, but it made one slight alteration to the terminology in the old Summary Offences Act by referring to either sex in "pimping" when habitually in the company of a "reputed prostitute" and without "lawful means of support" (s 5). Although the previous law of "knowingly suffers or permits premises to be used" for prostitution no longer applied, owners and managers, as well as receptionists, of brothels were liable for "living on the earnings". Unfortunately, it also continued to apply to husbands, lovers, adult children of prostitutes, and any others whom a prostitute chose to support financially. The previous law on using "premises held out as being available for the provision of massage, sauna baths, steam baths, etc. ...or for the taking of photographs, etc." was rewritten into the new Act (s 6). Another law prohibited owing or managing these kinds of premises (s 7). However, with the decriminalisation of the laws on prostitutes' activities, prostitutes need no longer work in disguised brothels. Finally, the advertisement of prostitution was illegal (s 8). Thus, the law encouraged prostitutes to be independent, but then prohibited them or their agents from recruiting business in the same way as any other businesses. The statute was loaded with contradictions. Whilst it was legal for a prostitute to work in a brothel, the fact that owners, managers and receptionists could be charged with living on their earnings encouraged owners to disguise brothels as massage parlours, which made prostitutes liable.
Unlike the Victorian Prostitution Regulation Act all legal references to prostitution were not contained in the same statute. The Crimes Act 1900, for example, covered the procuring laws. Until the legislative revisions of 1969-70 it also included "pimping" (s 91C), but now it made it an offence, punishable with seven years imprisonment, to procure anyone for prostitution, even "with that person's consent" (s 91A) and procuring anyone by means of fraud, intimidation or drugs carried a penalty of ten years imprisonment (s 91B). The first law, in particular, seems strangely out of step with the intention to allow prostitutes independence, and denies free choice. Once again, there is an underlying morality prompting the notion that prostitution per se, even as a choice by a free agent, is bad. In some circumstances a woman desirable of becoming a prostitute will feel it necessary to seek someone to assist her; that assistant may be an experienced prostitute whose knowledge will be invaluable to the recruit, but who will be liable to a charge of procuring.
In spite of the liberal nature of the Prostitution Act, police, so accustomed to harassing street prostitutes, continued to control them with the law of "offensive behaviour" in the Offences in Public Places Act 1979 which stated that anyone in a public place who conducts him/herself "in such a manner as would be regarded by reasonable persons as being, in all circumstances, offensive" (s 5). The success of this law depended on what is regarded a "offensive" and who is regarded as "reasonable", and it was open to too much moral interpretation. In 1979 to 1981 this law had an even wider moral interpretation by referring to such conduct as causing "alarm and affront" to offended persons. That this provided police with a means of controlling street prostitution is indicated by the fact that in the years 1976 to 1978 "offensive behaviour" arrests of females only numbered 1,663, while from 1979 to 1981, after decriminalisation, the number of females arrested for "serious alarm and affront" were 10,480 (NSW Bureau of Crime Statistics 1976-8 1); the difference in the two figures represents street prostitutes who could no longer be arrested for soliciting.
Likewise the other area of the most independent prostitution: women who chose to work in their homes or in a rented flat could no longer be arrested for "habitually using premises for prostitution". But they faced eviction from rented premises under the Landlord and Tenant (Amendment) Act 1948 enabling property owners to act to have a lessee removed, in spite of the conditions of the lease, simply because prostitution was being carried out on the premises (s 62[dl]). For those conducting prostitution in their own homes, municipal councils might act where by-laws prohibit commercial activities in residentially zoned areas, or where there is a contravention of the zoning regulations in the Environmental Planning and Assessment Act. The Sydney City Council brought proceedings against brothels in its jurisdiction in an effort to have prostitution conducted therein ceased and a contravention of planning regulations. The well known bordello "Touch of Class" appeared twice before the Land and Environment Court, and won the right to continue operating as a brothel.15 In other cases the City Council also failed to press home its action as it was held that no illegality was being committed by the brothel owners or the inmates.16 However, these cases involved large and wealthy syndicates or investors who could withstand drawn-out court proceedings. For self-sufficient workers whose independence was at the heart of the prostitution law reforms, no such resources were available, and invariably they were forced to move out at the first sign of trouble. Although no one has yet attempted it, there is room for contesting council actions by claiming a woman's prostitution in her own home as a "home occupation" free of planning restrictions as one of the "model provisions" in the Environmental and Planning Assessment Act. But in the legal contradictions that have followed the 1979 reforms, it does seem ironical that the very persons free of exploitation are the ones that are most victimised, while powerful brothel owners, who, in the Prostitution Act are assumed to be exploiters and therefore subject to the laws therein, are those who are in the best position to manipulate the law.
Children and young people were given special legislation outside the Prostitution Act. In the Child Welfare Act 1939 it was an offence for a brothel owner or manager to permit a young person (16-18 years) or child (under 16) on the premises (s 77) and any young person or child found in a brothel or who "lives, resides or wanders about with ... common prostitutes" even where the "prostitutes are the parents" (s 72[a]) could be apprehended by police with (s 75) or without (s 76) a warrant. However, the Commtinity Welfare Act, as introduced in 1982 but not proclaimed until some years after, gave authority to special officers to "protect" rather than "apprehend" a neglected child or any young person from exploitation. This was a more enlightened approach to caring for young people than the older Act. Although brothel owners or managers might still be penalised under the statute $1,000 or 12 months imprisonment, or both (s 132), this was a less harsh punishment than other states (for Victoria see p. 118, for other states, see p. 101).
In spite of the contradictions apparent in the legislation as a whole, the Prostitution Act itself was a major revolutionary reform in prostitution regulation for a modem western state. Certainly, it was the most liberal and progressive legislation on commercial sex in Australia. It provided a model for not only other jurisdictions in this country, but for the rest of the world. However, it proved to be more of an idealistic experiment for liberal politics than a practical regulation for government. A situation not unlike that of St Kilda in Melbourne forced the government to reverse some of its earlier decisions. In the early 1980s a virtual explosion of street prostitution occurred in the inner suburb of Darlinghust, and local residents organised into powerful lobbies for the return of prohibitions on soliciting. Although there was much occasion for residents to complain, especially with traffic jams of sightseers and tourists buses in otherwise quiet residential boulevardes in early morning hours, many of the claims of gangsters moving in, public fornication, and residents living in fear of their lives made excellent copy for the newspapers but were mostly unsubstantiated.17 Since the area was in the midst of changing its landscape to bourgeois tastes, the rise in street prostitution was as much a concern of developers and speculators as it was of local residents. Also, political opportunities presented themselves, as in the case of one self-appointed leader of a resident action group who got himself a seat on the City Council following the campaign against the prostitutes. The publicity, the residents' agitations, the police demands for a return of laws to control soliciting, eventually broke through the apathy of the government, and on Anzac Day 1983 the Prostitution Act was amended with the addition of the following law:
(s 8A): A person in a public street shall not, near a dwelling, school, church or hospital, solicit another person for the purpose of prostitution.
A further subsection prohibited soliciting "in a school, church or hospital" (s 8A), and "dwelling" for the purpose of this law referred to any place of residence "except where it is above or attached to a shop or commercial premises" (s 8A[a]). Simply speaking, it meant that prostitutes could no longer solicit "near" a house or a block of units, or any of the public facilities mentioned, but could do so quite legally in such a shopping centre as Kings Cross where residences were attached to shops or in hotels. The penalty for contravening the new law was a $500 fine.
The effect of this law cleared the inner residential streets of Darlinghurst of streetwalkers, apart from a handful of redoubtables who became the prime target of the police blitz that followed immediately after the law was introduced. Most of the street prostitutes shifted to the "legal" area on William Street and a few moved to the western suburbs and began working along Canterbury Road. Very few moved into the centre of Kings Cross since the street workers established there strongly resisted them. They had a popular, lucrative area that was totally legal, and they weren't ready to have newcomers ruin it for them. Unfortunately, some of the Darlinghurst women, the most desperate and heaviest drug users among them, suddenly deprived of an income, turned to crime as a substitute. Prison statistics provide evidence in support of this changed behaviour. From the end of April (when the new soliciting law was introduced) to the end of June 1983, the weekly figures in the numbers of women incarcerated show a fluctuation rate of 13 per cent, while the June total was 9 per cent higher than the April total. The June figure was the highest record for female detainees for 2.25 years. Furthermore, for the year ended 30th June 1983 the most outstanding increases in types of crime were a 52 per cent rise in "break and enter" and a 44 per cent rise in "other thefts" (such as shoplifting or bag snatching) above the previous year's figures. The actual numbers of female prisoners in the weekly totals from I May to 26 June rose from 143 to 169, or an increase of 26 women (see Perkins 1984). The inference is that as many as 20 or more prostitutes took up crime as a means of income once commercial sex was denied them.
The Wran Labor Government offered another solution to what it perceived as a "problem" with prostitution. It proposed that a parliamentary Select Committee Upon Prostitution be appointed to investigate the various aspects of prostitution in New South Wales.
This was resolved in favour of such a Committee by Parliament on 30 March 1983 (NSW Legislative Assembly 1983) and the Committee remained in operation until 9 April 1986. It was one of the most thorough investigations into prostitution in Australia. The Committee interviewed 79 sworn witnesses (not including certain other witnesses interviewed in-camera), consisting of prostitutes, clients, brothel owners, activists, residents, policemen, social workers, medical workers, public servants, Church leaders, politicians, and an assortment of others; visited street prostitutes and brothels; toured other jurisdictions in Australia and overseas, and studied an immense literature on the subject. In its final report the Committee made 122 recommendations. The Introduction to this report states the Committee's position most clearly:
Prostitution is not endorsed by the Committee and no recommendation in this report is directed to the furtherance of this dangerous and undesirable trade (Select Committee of the Legislative Assembly Upon Prostitution 1986).
Nevertheless, the Committee adopted a practical approach and was most careful to avoid moral implications in any of its proceedings. Its recommendations on the social, welfare, health and drug use aspects of prostitution demonstrate a sincere concern for prostitutes and propose a number of solutions aimed at improving their welfare. It acknowledged certain facts on police corruption and called for an internal departmental solution to this problem. It opposed the kind of prohibitionist approach to prostitution legislation that we have just reviewed, as it points out in the Introduction to the report:
While calls for the abolition of prostitution have an immediate emotional appeal, they fail to recognise the underlying social and economic preconditions of prostitution, and do not take full account of the historical evidence for its continued existence (Select Committee of the Legislative Assembly Upon Prostitution 1986).
The Committee's approach to resolving the legal control of commercial sex was what it referred to as "decriminalisation with controls". The thrust of this approach is outlined as a series of intentions to:
- remove prostitution as far as possible from the ambit of the criminal law, while retaining provisions against the exploitation of minors; in attempt to reduce levels of demand for, and recruitment into, prostitution through social welfare reform;
- treat prostitution as a planning matter with regulations to protect public amenity and to control noise and nuisance aspects of the trade;
- effect a controlled decentralisation of prostitution, as exemplified in the provisions for restricted street soliciting, and avoid the formation of redlight areas (Select Committee of the Legislative Assembly Upon Prostitution 1986, pp. 241-2).
To these ends certain recommendations for reforming existing laws were made. Changes to the Prostitution Act should include a clarification of the soliciting law so that the term "near" would mean "directly in front of or in close proximity to or directly opposite", and the act of soliciting should only be an offence when the dwelling, school, church and hospital is "in use or being occupied". The law on "pimping" should only apply when coercion and intimidation are being applied, and discreet forms of advertising commercial sex should be allowed within the ambit of the proposed planning regulations for prostitution. The Committee also felt that the procuring laws in the Crimes Act should be repeated since there were ample other laws sufficient for dealing with coercive practices, although an additional law should be included to protect children and young people under 16 years from being procured for prostitution through fraud, intimidation, or drugs. It was also of the opinion that the existing laws in the Offences in Public Places Act should be enforced against obnoxious clients and on-lookers, rather than as currently, as stand-by enforcement against street prostitutes for soliciting. An important recommendation was the repeal of the Sections of the Disorderly Houses Act currently used to close brothels, since the Committee felt this was an inappropriate statute for the control of prostitution.
With regard to brothels, the committee recommended that no brothels should be permitted in residentially zoned areas and should not be allowed to exist at street levels in shopping centres. Furthermore, the term "brothel" should be a legal designation referring to all premises involved in prostitution, including escort agencies and flats, homes or rooms in which only one prostitute operates. The ownership of brothels should be by individuals, whose names appear on the development applications and corresponding registration, and these individuals must be of "good fame and character" without a conviction for a "serious crime" within the previous ten years. No individual or his/her relatives should be permitted to own more than three brothels. Regulations guiding the brothel industry would be within the jurisdiction of the Minister for Planning and Environment, although the consenting authority in the issue of permits would be local councils. Rejection of permits could be appealed against by the applicant taking the matter to the Land and Environment Court.
For a parliamentary inquiry involving all Parties, the Committee's conclusions were quite radical, but still in the spirit of "decriminalisation" first mooted in 1977. Its retention of most of the laws in the Prostitution Act but inclusion of amendments which seem more equitable to street prostitutes and prostitutes' choices of supporting whomever they wish, and especially the proposal to amend the Disorderly Houses Act, demonstrate its intention to alleviate prostitutes and brothel owners of burdensome, inappropriate laws. Its confinement of brothels to commercial locations demonstrates a consideration for the community at large. It was a good compromise. But there are two major criticisms. The inclusion of private premises with a single prostitute in the planning scheme for brothels is unrealistic, because these exclusive, clandestine operations are not equipped to compete with large bordellos, and they would be forced to continue outside the protection of the law. The second criticism is that, in view of the tradition of resistance to prostitution demonstrated by councils, their authority in deciding on permits should be subject to the regulation of higher, less corruptible, more distant, authorities. This would save in terms of cost and time in court appeals, such as was experienced in the early period of legal brothels in Victoria.
For all its good intentions and practical suggestions, the Select Committee's list of recommendations was ignored by the Wran Government and its successor in 1988, the Greiner Liberal Government. Apparently, it was too revolutionary for both, which is a curious position, in view of the multi-partisan approach in the inquiry, the expressed need by the Wran Government to investigate prostitution in search of a solution, and the enthusiasm for the project by Parliament. As the Report is allowed to collect dust as a curiosity piece in the parliamentary library, and time diminishes the memory of its existence, in retrospect it would seem that the entire process of inquiry had been nothing more than lip service to social liberalism. It is tempting to speculate, however, on what the legislative outcome might have been had the Report recommended harsh oppressive prohibitionist laws.
Since 1988 the Greiner Government has, in fact, made some legislative changes, but in the opposite direction to the solutions suggested by the Select Committee. It repealed the Prostitution Act and re-introduced the Summary Offences Act, which also included "offences in public places" laws. But it was very different to the previous statute of the same name in the 1970s. The prostitution laws remained unchanged in the transfer from the Prostitution Act. So, in fact, it would seem that this Government is also prone to conducting lip service to positive action by appearing to implement tougher legislative with the use of the name of the old statute as an illusion of change, while retaining the actual laws intact. However, in May of the same year the Greiner Government was impressed enough by the protests and antics of a resident action group in the western suburbs calling for police action against the 20 or 30 prostitutes on Canterbury Road to push through Parliament amendments to the Summary Offences Act that made soliciting an offence "within view from" a dwelling, church, school or hospital, thus granting police even wider powers. It was followed by another amendment, a new law to criminalise clients as well as prostitutes for an "act of prostitution" in a public place.
The Summary Offences Act includes: "pimping" (s 15[l]), carrying a penalty of 10 penalty units or 12 months imprisonment; using premises "held out as being available for the provision of massage, etc." (s 16), carrying a penalty of five penalty units or three months imprisonment; owing or managing such premises (s 17), carrying a penalty of 50 penalty units or 12 months imprisonment; and advertising prostitution (s 18), carrying a penalty of six penalty units or three months imprisonment. These laws are the same as the previous Prostitution Act, except the penalties have been increased. 18 Soliciting "near" or "within view from a dwelling, etc." (s 191 1 1) or "in" the same places (s 19 [ 2 1) carries a maximum penalty of six penalty units or three months imprisonment (previously no imprisonment was imposed), while the soliciting of another person "in a manner that harasses or distresses the other person" (s 19131) has a maximum of eight penalty units or three months. The additional laws used against both prostitutes and clients include:
(s 20): Each of the persons taking part in an act of prostitution
- in, or within view from, a school, church, hospital or public place; or
- within view from a dwelling is guilty of an offence.
Public place here could include a park, oval, commercial or industrial area. This may apply whether the "act of prostitution" is in the open, or, as is customary with some street prostitution, in a vehicle "in, or within view from a school, etc." (s 20), in either case carrying a maximum penalty of 10 penalty units or six months imprisonment.
The 1980s has been a confusing and uncertain period for prostitutes, especially street prostitutes who are often unsure when they are breaking the law and when they are not. On Canterbury Road, for example, there are locations where soliciting is legal and others where it is illegal. Table 2.12 shows the trend in arrests for the decade which reflects these changes.
The period 1979 to 1982 records no arrests for soliciting because in the Prostitution Act this was not an offence. However, there was an enormous increase in arrests of females for "offensive behaviour" or "serious alarm and affront" in 1979, rising by 6.5 times the previous year's figure, a clear indication that police continued to harass of court appearances for using and owning/managing premises "held out" as massage parlours probably indicates a period of adjustment as prostitutes and brothel owners got used to the idea that they no longer needed to use a "massage parlour" as a front for prostitution the length of time indicates that old habits die hard. Since the above figures are not sex specific, it is impossible to determine the proportions of women represented in the different offences. However, following tradition, as Table 2.13 shows, the number of females generally in the prostitution-related offences is considerably higher than for males (including male prostitutes).
It is apparent from these figures that women continue to be the main target of arrest, whether there are laws aimed at prostitutes or not. In 1981 and 1982, before the reintroduction of a soliciting law, most likely the females appearing before the courts were managing premises held out as "massage". From 1983 on they were mostly those committing offences of soliciting "near" a dwelling, etc. Although by 1988 most street prostitutes were aware of the provisions which enabled them to work legally, about 20 to 30 continued to defy the law by working along Canterbury Road, where most locations are "within view from" a dwelling, etc. The court appearances for soliciting in the above tables indicate an increase in arrests following the wider powers granted police with the change in terminology in the law. Armed with an additional law to arrest customers for an "act of prostitution" in a public place, police turned their attention to catching clients in their cars literally with their pants down. The first arrest of a customer was made in January 1989. The prostitute with him was arrested as well under the same charge. She was also charged with soliciting, so that whilst he was fined $250, she had to pay $400 (Sydney Morning Herald, 10 February 1989). Thus, even when police are given powers to arrest clients, traditionally the woman still bears the bulk of the blame.
|Source: NSW Bureau of Crime Statistics, Court Statistics, 1981-89|
The recent public release of police arrest figures indicate an increase for soliciting charges in 1988-89 nearly 13 times higher than the previous year. Table 2.14 indicates the extent of this rise.
The extraordinary leap in numbers of arrests for soliciting in 1988-89 is a likely response to resident agitations in Canterbury .19 Since very small numbers of women work on Canterbury Road (see note 2, ch. 1) we must assume they were arrested over and over again. But, the most extraordinary feature of these police figures is that there is no correlation with the corresponding court statistics on Table 2.12. Given the usual time-lags between arrest and court appearance, the court process of dealing with each case on its principal offence, case withdrawals and other anomalies, it still does not explain, for example, why there should be 238 court appearances in 1987 and 376 in 1988 with only 28 arrests in 1986-87 and 63 in 1987-88 for soliciting preceding them. The only explanation received from police so far is that a change in case recording procedures had taken place around that time.
Just as the police turned to "offences in public places" laws laws to deal with street prostitutes once offences for soliciting had been withdrawn in the early 1980s, so they also used the Disorderly Houses Act to close down brothels when they no longer had the laws of "habitually" using premises for prostitution and of "suffer(ing)" or "permit(ing)" such use. In this period 11 premises came before the court with applications for declaring them "disorderly houses". The first case was the most crucial, since it tested the intent to decriminalise prostitution under the legislative reforms of 1979. The court ruled that the decriminalising legislation had no effect on the disorderly houses statute because it is not the lawfulness that is the question, but the fact that prostitution was being carried out.20 However, it seems that police power to use the statute is far wider than in the context of prostitution, drunkenness or disorderliness, as their raids on gay premises indicate, claiming that homosexuality itself is "indecent conduct" or "entertainment of a demoralising character" (see Schwartzkoff 1983). The Police Department itself expressed dissatisfaction with the statute as it stands as an ineffective method of enforcement in the control of prostitution. Of the 11 applications before the Supreme Court in 1983, they point out, only four declarations were made, while three were rejected and one case withdrawn (the balance at the time were yet to be heard in full). In their submission to the Select Committee Upon Prostitution it was stated:
The exercise of making various applications has been long and costly but served to clearly demonstrate that the Disorderly Houses Act is an ineffective tool for the control of prostitution (NSW Police Department 1983).
The police were agitating for more efficient means of dealing with prostitution. But they continued to use the statute in the late 1980s, with some 50 premises in court applications seeking declarations as "disorderly houses" ( Sydney Morning Herald, 20 June 1989). By March 1989 three had been so declared. But there are still others which continue to avoid being closed. One such case was the "escort" parlour, Moonlight, on which a decision was rendered by the Supreme Court on 27th April 1987 virtually reversing Yeldham J's earlier decision (p. 168, n. 20).21 So while the arguments, court judgments, and police objections continue to abate on "disorderly houses", the police relentlessly pursue it as an action against brothel prostitution. They defend their action by claiming an obligation to enforce laws while they exist in the legislation. The question is one of efficiency and expediency, which is a responsibility of legislators. The evidence seems clear enough that in the case of the Disorderly Houses Act, especially with reference to prostitution, this is no longer efficient nor expedient. The question that continually begs an answer is "why is it still there?" in a legal climate of "decriminalisation".
The last aspect of NSW legislation to be considered here is the health regulation as it refers to prostitution. The Venereal Disease Act contains the most relevant laws. That which concerns prostitutes is the offence of knowingly spreading sexually transmissible diseases by "any act likely to lead to the infection of another person" (s 21). For workers, managers or occupiers of brothels, it is an offence to knowingly permit an infected person to work on the premises as a prostitute (s 22). A prostitute, along with the rest of the population, is under a legal obligation to seek treatment and refrain from behaviour likely to spread the disease if she is found to be infectious (ss 4, 5, 9A, 13). Prostitutes, owners, managers and others in brothels are prohibited from using medical certificate clearances in connection with prostitution (s 15). This latter law operates on the rationale that a person is cleared of infection for only the moment of the medical test, and does not take into account undetected infections nor the likelihood of being infected on the very next sexual contact. Some brothel managers display their staff's medical clearance on a board for client inspection, but this is clearly illegal.
Rumours of prostitute AIDS carriers appeared in the press in late 1984 (Daily Telegraph, 11 December and 14 December 1984). A wave of official panic spread across the state government and health authorities as they sought laws to enforce or new ones to implement. The Public Health (Proclaimed Diseases) Amendment Act was introduced in 1985 with AIDS infection by prostitutes in mind. Under this statute "any person knowing they have a proclaimed disease shall not have sexual intercourse with another person" unless the other person has been warned of the risk and accepts it (s 50n). In the same statute brothel owners or managers could also be charged for permitting persons with a proclaimed disease to work on the premises (s 50o).
In 1987 the newspapers broke a story about a street prostitute named Sharleen who was believed to be antibody positive to HIV (Sydney Morning Herald, 9 July 1987). The Minister for Police, at the time, George Paciullo, claimed "the police had their hands tied", the incumbent Minister for Health, Peter Anderson, suggested using the Public Health (Proclaimed Diseases) Amendment Act, and Liberal Member for Bligh, Michael Yabsley, felt that "the full weight of the law must be used to stop her." (Daily Telegraph, 8 July 1987). But neither the law nor the health authorities did anything at the time. It was thought by Sharleen that she was infected through sharing needles. Two years later she appeared on the TV show "Sixty Minutes" (Nine Network, 30 July 1989) explaining her reasons for continuing to work as a prostitute and insisting she always used prophylaxis. The tone of the program was condemnatory of her actions and focused on her role as a prostitute. It hardly investigated her drug addiction and whether she continued to share needles.22 There was an immediate response by the Greiner Government, with the Minister of Health, Peter Collins, referring to Sharleen as a "walking time bomb", and the Department of Health enforced a rarely-used law of the Public Health Act 1903, which enables health authorities to detain an infectious patient for treatment (s 32A). 23 It was the involuntary nature of this action which so horrified civil libertarians, and reminded many of us that a law-bound society which considers the law as the ultimate solution to social dilemma can never really accept "decriminalisation" as opening the way to non-legal resolutions of situations which are at present controlled by legislation.
Earlier I referred to "decriminalisation" as seeking a return to some past utopian period of laissez faire. But in the nature of political hegemony in the modern state it is not so much offering prostitutes freedom from legal control as it is a matter of concentrating more on the elements of prostitution perceived as exploiting prostitutes, according to the ideologies of individual rights expressed by the civil libertarian and feminist movements of the 1960s and 1970s. This has resulted in such situations as that in Sweden, where prostitutes may work in freedom but the restriction of premises is more reminiscent of a "legalisation" system. In New South Wales, also, the retention of the Disorderly Houses Act is a part of a legal hypocrisy which, on the one hand, encourages prostitutes' freedom of choice, but, on the other, denies them places where they might work. The retention of the "pimping" laws is another example of a legal contradiction, with "decriminalisation" an effective mechanism for the decline of the exploitative pimp, while its legislation enables police to criminalise such persons as husbands, lovers, brothel receptionists and others whom prostitutes freely choose to support. Thus, "decriminalisation" has become a cliched term within a rhetoric of liberalism and human rights in the political expediencies of party politics. In New South Wales it has been an unstable enterprise where "decriminalisation" idealism was here one day, gone the next in response to the political whims of the party in power. This is a long way from the ideals of "decriminalisation" or of the reality of past legal laissez faire. Regardless of whatever trendy catch-cry is used to "modernise" a political party's platform, it is still bound by the will of the majority, and if that will is perceived as moralistic then the laws will change superficially to appear to be "modern" while the underlying principle of morality remains. This seems to have happened in New South Wales. This is a long way from the spirit of individual freedom of choice as the ideological imperative in "decriminalisation".
Nowhere is this more exemplified than in a comparison between the police statistics of Queensland, assumed to be the most repressive "police state" in Australia, and New South Wales, with its "progressive" law reforms. In 1986-87 (see Table 2.3) Queensland police made 920 arrests for prostitution-related offences. Of these 627 were of prostitutes for soliciting anywhere or using premises for prostitution. In 1998-89 (see Table 2.14) New South Wales police made 823 arrests for prostitution-related offences. Of these 808 were of prostitutes for soliciting in residential areas only. The first involved a population of possibly 500 women; the second a maximum of 30. Taking these estimated populations, in Queensland on average each prostitute was arrested 1.25 times, whilst in New South Wales the average is nearly 27 times. Thus, in the "decriminalising" trend in New South Wales legislation, the rate of arrest for each prostitute may simply increase in accordance with police energy so long as laws remain to be used. The morality of the "bad woman" bridges all systems. The only way to remedy this is total "decriminalisation".
ConclusionIn this chapter I have endeavoured to show how prostitutes have been defined by law. Although, as we have seen, prostitution has been a part of white urban society in Australia since the foundation of British civilisation on this continent, for more than half of the two centuries of white Australian culture prostitutes were neither clearly legally identified nor subjected to criminal legislation. Throughout the early 19th century prostitutes were often identified synonymously with the convict class, and convict women in general identified with them. In the post-convict period of the 19th century prostitutes were often identified with a general class of social misfits and extremely poor, falling within the ill-defined legal category of "vagrants". It applied as much to the poorest of women and those without homes as it did to those women noted for their obvious immoral behaviour. Indeed, without a legal stigma demarking prostitutes from other women, it is likely that most female prostitution in the 19th century was transient and casual, whereby large numbers of women moved in and out of the sex trade as the expedience of poverty motivated them. Thus, even in the late 19th century prostitutes continued to be a part of a non-distinctive subculture of working-class women in Australian urban communities that were divided more clearly along class lines than lines of morality.
As we have also seen, the late 19th century trends to contain sexually transmitted diseases and immorality led first to the clear identification of prostitutes as a sub-group for health purposes, and later, by the turn of the century, as a legal entity for the purpose of criminal law response to morality legislation. In the early 20th century the situation had changed considerably so that prostitutes became a legally defined category of women earmarked as the archetypal female moral degenerates. This identification of them as part of the criminal class finally severed their old roots with the working class and with women in general. Indeed, it was now recognised that prostitutes emerged from all classes, but their entry into prostitution immediately re-categorised them as a special class of women more closely associated with male criminals than with other women. The popular mythology of prostitutes that complemented the law in defining them as a special social group, also assumed that most of these women were products of a brutal proletariat childhood, and those middle-class women who succumbed to commercial sex were greater degenerates who had deliberately declined in social status. This identification with criminals modified the previous trend of casual and transient prostitution so that throughout the 20th century prostitutes entered the sex industry on a much more permanent basis and became "locked" into the cultural milieu of prostitution through the legal process of criminalising them. Most of these women would not have acquired criminal records, not have had police involvement nor come before the courts, had it not been for the fact that commercial sex had been made illegal. Once prostitution had acquired a criminal status, it attracted other products of criminality: extortion, and coercion, with the involvement of organised crime, institutionalised pimping and professional pandering (procuring).
Within the past decade two states became consciously aware of these problems and attempted legal reforms to reduce the exploitation and criminal connections which had become a part of prostitution since the introduction of criminal laws. But as we have seen, neither Victoria's "legalisation" nor New South Wales' "decriminalisation" successfully freed prostitutes from the stigma of criminals because these ambiguous systems remain strongly rooted in an overall legal system that continues enforcing laws that thinly disguise the ideologies of 19th century moralism. Both Victoria and New South Wales Governments have done little more than provide lip service to the humanitarian principles on which the reforms were purportedly based. But in New South Wales, at least, most prostitutes are nowadays free of legal encumbrance, even if police have the power to deprive them of venues for working. The handful of women who do contravene laws on soliciting in non-commercial areas are made scapegoats by the present conservative state government determined to stay in power on a fiction of law and order. On 21st November 1989, the Greiner Liberal Government carried this fiction to its extreme by announcing its intention to imprison these women rather than fine them or place them on recognizance.
Legislators of this century have continued to fail to realise that prostitutes are not a special breed of women with compulsions to indulge in criminal behaviour. The next chapter will explore this issue further by demonstrating that socially, culturally and psychologically prostitute women pursue lifestyles little different to the millions of other single working women, wives and mothers in the Australian community. Popular mythology keeps prostitute women separated from other women in people's minds, while the law, founded as it is in 19th century puritanism, keeps them separated in the social order.
- J.T. Bigge's "Report of the Commissioner of Inquiry into the colony of NSW" in Parliamentary Papers Vol 20, cit. J.D.Ritchie (ed), Evidence the Bigge Report, Heinemann, Melbourne, 1972, Vol. 2, and J. D. Ritchie Punishment and Profit: the reports of John Bigge, Heinemann, Melbourne, 1970. Bigge described the Female Factory at Parramatta, a large room annexed to the gaol, designed in 1804 to house sixty women (although it usually contained as many as 200 women and their children: "(It) consists of one long room that is immediately above the gaol, having two windows... (and being) 60 feet by 20 feet; and at one end are store-rooms, where the wool, yarn and cloth are kept. There is one fireplace, at which all the provisions are cooked. The women have no other beds than those they can make from the wool in its dirty state... No attempt has been made to preserve cleanliness in this room, as the boards had shrunk so much, that when they were washed, the water fell through them into the prison rooms below".
- Contagious diseases legislation was not passed in New South Wales and South Australia in spite of some enthusiastic debating of the issue. It seems that more enlightened authorities and common sense prevailed in these colonies than in Queensland, Tasmania and Victoria (on NSW see J. Allen: "The making of the prostitute proletariat in early 20th century New South Wales" in Daniels (ed.), 1984, p. 206; on SA see Horan, 1984, pp. 115-16). In NSW in 1979 an unsuccessful attempt was made to install a Lock Hospital, ostensibly to remove venereal diseased patients from Sydney Hospital (see M. Lewis: "From Blue Light clinic to the Nightingale Centre: A brief history of the Sydney STD Centre and its forerunners", Part 1, Venereology, vol. 1 no. 1 Aug. 1988, p. 4.
- Most court references to a definition of "soliciting" have occurred in English jurisprudence. As Jacobs J noted in Fingleton v. Bryson (1980) 26 SASR 208: "Surprising as it might seem, there appears to be no reported decision in Australia on the meaning of the word 'solicit' in this context" (at p. 209). The person in question had been charged with the Police 0ffences Act 1953-75 (Summary Offences Act) (SA) s. 25 for "soliciting in a public place for the purposes of prostitution". Jacobs J held that since the solicitation was made in a newspaper advertisement, to which the appellant replied and arranged to meet the respondent in a hotel bar, this did not constitute soliciting in a public place. The appellant was a police officer endeavouring to trap the respondent. A similar circumstance occurred in Burge v. Director of Public Prosecutions (1962) 1 WLR 263 whereby a prostitute charged under the Sexual Offences Act 1956 (UK) S. 32 for "soliciting in a public place for immoral purposes" was acquitted because her advertisement displayed on a shop noticeboard was deemed not to be soliciting in a public place in any physical sense. The same circumstance prompted a similar decision in Weisz and another v. Monahan (1962) 1 A11 ER 664; 1WRL 262, when a charge under Street Offences Act 1959 (UK) s.1(1) for "soliciting for the purpose of prostitution" was dismissed; Lord Parker CJ concluded: "I am quite satisfied that soliciting in that connexion involves the physical presence of the prostitute and conduct on her part amounting to an importuning of prospective customers." (at P. 665). Much earlier Horton v. Mead (1913) 1KB 154 in response to a charge under the Vagrancy Offences Act 1898 (Eng) s. 1(1)(b) for "persistently soliciting) in a public place for immoral purposes", Phillimore J concurred: "(There) cannot be a conviction for solicitation unless it is proved that the solicitation in some way reached the ears or affected the senses of the person solicited." (at p. 158). See also ex parte Langley: re Humphries and another (1953) 70WN 217 (at 219). In Behrendt v. Burridge (1977) 1WLR 29, however, a woman was charged with the Street Offences Act 1959 (UK) s. l(l) for soliciting for the purpose of prostitution after she displayed herself in a front window of a house facing a street frequented by men seeking prostitutes in a manner which left no doubt as to her intention, and she was convicted, for as Boreham J explained: "If one asked the question of an ordinary passer-by, 'What is that young woman doing in that window, in that garb, in that (red) light, in those circumstances?', one ventures to suggest the clear answer would have been, though perhaps not in these precise words, "She is soliciting for prostitution'." (at p. 33). On the other hand, Lucas J made it also perfectly clear in Newman v. Paties ex parte Newman (1979) QdR 402 when acquitting a prostitute charged with the Vagrants, Gaming and Other Offences Act (1931) (Qld) s. 5(1)(1)(b), he said: "In order to constitute soliciting by a woman there must be an active approach from the woman." (at p. 403).
- Liquor Act 1912 s. 78(b) in Queensland; Liquor Act 1912 s. 45 in New South Wales; Licensing Act 1976 s. 59(6)(b) in Tasmania; Liquor Ordinance 1975 s. 88(2) in Aust. Capital Territory; Licensing Act 1932 s. 51(l)(a) in South Australia; Liquor Act 1985 s. 105 in the Northern Territory; Liquor Licensing Act 1988 s. 11 5(b) in Western Australia.
- See Singleton v. Ellison (1895) IQB 607 and Durose v. Wilson (1907) 71 JP 263. Also Donovan v. Gavin (1965) 2QB 648; and Strath v. Foxon (1955) 3 A11 ER 398; 39 Cr. App. R 162; (1956) 1 QB 67. The latter clarifies Singleton v. Ellison and Durose v. Wilson with: "Premises were held not to be a brothel where such premises were divided into two self-contained flats (with no common use other than a joint use of a kitchen), which were let separately to two known prostitutes, each of whom used her flat for the purposes of prostitution for herself alone."
- Ex parte Fergusson (1966) 84 WN (Pt 1) 446, in which "immoral conduct of prostitution" is not "indecent conduct" and premises is not a "disorderly house" under meaning of Disorderly Houses Act 1943 s. 3(i)(a). Upheld by Fergusson v. Gee (1966) 86 WN (Pt 1) 149. Later however a reverse decision held that a premises is "disorderly" in s. 3(l)(e) of same Act, since it was used for "habitual prostitution", Re applications of Shephard(1983) 1 NSWLR 265.
- Vagrancy, Gaming and Other Offences Act 1931 s. 8(3) in Queensland; Landlord and Tenants (Amendment) Act 1948 s. 62(5)(d1) in New South Wales; Police Offences Act s. 11 in Tasmania; Police Ordinance s. 19A in Aust. Capital Territory; Summary Offences Act s. 31 in South Australia; Suppression of Brothels Act 1907 s. 105 in Northern Territory; Police Act s. 76F(3) in Western Australia.
- Norma Jean Almodovar was charged with "pandering" under Californian Penal Code s. 266i when she told a friend who was a policewoman she could find a "john" for her. The tone of the conversation was in the nature of a social conversation with flippant comments on male companionships. She was sentenced to three years gaol, but she was released after one and a half years for good behaviour, and took her side of the story to national and local media in a bid to expose the injustice. According to her she was the target of a particularly nasty police response to her public statements on police corruption and misconduct within the force. As a one-time member of the police force, she resigned out of disgust, and took up prostitution as a source of income. She was in the act of writing her autobiography, "Cop To Call Girl", when police raided her home, confiscated her manuscript as evidence and arrested her for the above charge. She never saw her manuscript again. In the local court the case was treated lightly and she received a recognizance and "rising of the court" sentence. The police appealed and in the subsequent hearing she was sentenced to imprisonment (personal communication).
- Criminal Code s 217, under 17 in Queensland; Crimes Act s. 660, under 16 in New South Wales; Crimes Act s. 49, under 18 in Victoria; Criminal Code s. 124, under 17 in Tasmania; Criminal Law Consolidation Act s. 49, under 17 in South Australia; Criminal Code s. 187, under 16 in Western Australia.
- This is a common police tactic in America also. However, since in most States customers of prostitutes are also contravening laws, not only do policemen pose as clients to arrest prostitutes, but policewomen also pose as prostitutes to arrest clients. An anecdote to this is a satirical cartoon in Tricks Comics showing two undercover cops, one a policewoman parading as a prostitute, the other a policeman pretending to be a client, arresting one another (cit. J. Gagnon, Human Sexualities, Scott Foresman, Glenview, 1977).
- In 1989 a penalty unit in Victoria and NSW was valued at $ 100, i.e. two penalty units = $200, ten $ 1,000, fifty = $5,000.
- The English Disorderly Houses Act 1751 provides an early definition of the term: "any house, room, garden or other places kept for public dancing, music or other public entertainment of the like... without a licence should be deemed a disorderly house." (s 2). In R v. Quinn (1962) 2 QB 245 (at p. 255) the decision was that "a disorderly house is a house conducted contrary to law and good order in that matters are performed or exhibited of such character that their performance or exhibition in a place of common resort: a) amounts to an outrage of public decency, or, b) tends to corrupt or deprave or, c) is otherwise calculated to injure the public interest so as to call for condemnation and punishment."
- In ex parte Fergusson (1966) 84 WN (Pt 1) 446, Le Gay Brereton J, in deciding that discreet immorality was not disorderly, had made his judgment in a case involving a single prostitute on premises. In the appeal, in Fergusson v. Gee (1966) 86 WN (Pt 1) 149, Heron CJ concurred with earlier decisions in that prostitution per se, within the meaning of the Act, was not illegal nor disorderly and that the expression "indecent conduct" did not necessarily apply to prostitution.
- In 1972 the Police Department ceased publishing arrest figures for prostitution offences. But the newly formed Bureau of Crime Statistics & Research recorded and published court appearances for these offences. Since the police statistics are based on cleared cases of the Bureau's own final appearances in court, it is impossible to compare the two sets of figures due to police records showing each arrest made, while the courts heard cases based on the most serious offence of each defendant. See p. 153 for an example of discrepancies between police and court records.
- In Sydney City Council v. Ke-Su Investments Pty. Ltd. (1983) 48 LGRA 381 McClelland CJ held that "Touch of Class" was a "well conducted brothel" entitled to continue operations free of council restraint. Following a ministerial decision to prohibit prostitution under the terms of existing development pen-nits another case involving the owners of "Touch of Class" took place. However, in Sydnev City Council v. Ke-Su Investments Pty. Ltd. (1985) 51 LGRA 187, McClelland CJ upheld his earlier decision with the conclusion that the planning laws were not designed to judge morality, nor to enforce what may be unlawful in other legal contexts.
- In Council of the City of Sydney v. Mailey (1985) 51 LGRA 207 Cripps J found that the premises in question had been conducted as a brothel since 1971 and was still being so conducted. Therefore, he concluded that it had a right to continue doing so under an "existing use" right by a law in the Environmental Planning and Assessment Act s. 106.
- For instance, one newspaper reported "prostitutes operating in gutters" (Sydney Morning Herald, 18 September 1981) and another reported "sex acts performed on doorsteps" and an "intimidation of residents" (Daily Mirror, 18 November 1982). Local housewives resorted to wearing aprons and carrying baskets on the street in order not to be identified as prostitutes. The residents' action group even applauded a deranged old man for shooting his air gun at prostitutes and "their foulmouthed customers" and referred to his death under police questioning for the wounding of one woman as "the death of a crusader" (Sun-Herald, 20 February 1983). At the time I was working as a social worker in the area and apart from my own impressions that the residents were grossly exaggerating the situation, prostitutes were denying much of the residents' public statements and protesting that they themselves had been subjected to much abuse and violence from the residents.
A comparison of statutory penalties will show the extent of the increases. One penalty unit in the Summary Offences Act is equal to $100; here the penalty units have been converted to cash.
Offence Prostitution Act Summary Offences Act Living on earnings (s 5)$800/12 mth (s 15)$1000/12 mth Use of premises "massage" (s 6)$400/6 mth (s 16)$500/6 mth Owner/manager "massage" (s 7)$800/12 mth (s 17)$5000/12 mth Advertising (s 8)$400/6 mth (s 19)$600/3 mth Soliciting (s 8A)$500 (s 19)$600/3 mth
- Residents of the Canterbury area accused prostitutes of fornicating in "front yards, streets, church grounds" (The Picture, 1 April 1989) "using squash courts, business car parks, stairwells of home units" (Sydney Morning Herald, 2 March 1988), and a local independent candidate for a by-election claimed "organised crime is starting to take a stranglehold here" due to the prostitutes (The Western Suburbs Courier, 16 March 1988). One resident published a prostitute's diary supposedly found dropped on the street. It contained an admission of having a 15 year old boy as a client, who paid $50 (Sydney Morning Herald 10 February 1989). Prostitutes refute these claims and deny that any street worker would keep such a detailed diary, let alone carry with her onto the streets.
- In Re applications of Shepard (No. 1) (1983) 1 NSWLR 96, Yeldham J concluded: "The conclusion at which I have arrived is that because some at least of the sections to which I have adverted retain a scope for operation where premises are declared a disorderly house under s. 3(l)(e) there has not been an implied repeal of that provision by the legislation to which I have referred, which was passed in 1979... I do not consider that the provisions of the Prostitution Act constitute a code... any more than did the Summary Offences Act 1970 contain a code concerning prostitution."
- In Re application of Shaw, Supreme Court No. 10620 of 1985, Judgment 27 April 1987, Enderby J said: "While the law remains as it is in my opinion, on the facts, since 1979-unless there are offences being committed or unless there is some other element or form of relevant nuisance or degree of 'disorderliness' - the problem, if there is a problem, is not to be solved or overcome by the use of the Disorderly Houses Act... There remains what I call the Town Planning problem and in my opinion, while the facts remain as they are, the Disorderly Houses Act should not be used to solve a town planning problem."
- There is a negligible rate of HIV infection among prostitutes in general, while it is spreading steadily among intravenous drug users (see Philpot et al. 1988). Where it is likely to appear in the prostitute population, as in the case of American and European health research, is among the intravenous drug users working in the sex industry.
- Other Australian States have similar laws: for example in Victoria's Health Act 1958, s. 128. 1; in Queensland's Health Act 1937, s. 36; in South Australia's Health Act 1935, s. 143; in Western Australia's Health Act 1911, s. 263; in Tasmania's Public Health Act 1962 s. 28.