Criminalizing Prostitutes in Current
Australian Legislation
In 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.
Table
2.1A: Prostitution Laws in Offences and Crime Statutes in Australian
States and Territories (pdf)
Table
2.1B: Prostitution laws in statutes of New Zealand, North America
and some western European countries (pdf)
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[1] [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[2]) 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[1][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 [8]) 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 court[3] 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 [1][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[1][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[2]) 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[1][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[3]).
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][1]).
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 [1926] 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 [1972] 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
[1972] 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[3]
& [4]), or under the WA Police Act (s 76F[3]) 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[2],[3] & [4]),
procuring a woman for prostitution through false pretences (s 192[2])
or detaining a woman in a brothel against her will (s 194[2]) 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 [2]), 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[1]) 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[1]). 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 [1]). 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 [1977] 16 SASR
4 1).
A glance at Table 2.2 will indicate the extent of arrests for prostitution-related
offences in each state.
Table 2.2 : Prostitution-related arrests for fiscal
year, 1986-87
State |
Population in 1985 |
Prostitution arrests |
Pro-rata of arrests/ population |
TAS |
442,100
|
6
|
1: 73683
|
WA |
1,407,500
|
46
|
1: 30598
|
SA |
1,362,900
|
61
|
1: 22343
|
QLD |
2,546,400
|
920
|
1: 2768
|
Total |
5,758,900
|
1033
|
1: 5586
|
Sources: ABS 1986; various Police
Department Annual Reports 1987; ABS Court Statistics
1987. |
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.
Table 2.3 : Arrests for prostitution-related offences
in Tasmania, Western Australia and Queensland
Type of Offence |
1986-87 |
1987-88 |
1988-89 |
TAS |
WA |
QLD |
TAS |
QLD |
WA |
QLD |
Keep/Manage premises |
|
35
|
242
|
|
236
|
36
|
181
|
Living on earnings |
6
|
1
|
51
|
2
|
76
|
4
|
99
|
Soliciting/ loitering |
4
|
83
|
101
|
36
|
72
|
Using premises |
|
|
544
|
|
59
|
|
115
|
Total |
6
|
40
|
920
|
2
|
472
|
76
|
467
|
Source: Correspondence with the
Tasmania Police 13 October 1989; Western Australia Police, 7
November 1989: Queensland Police Department, 12 October 1981) |
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.
Table 2.4 : Arrests for prostitution-related offences
in South Australia
Type of Offence |
82-83 |
83-84 |
84-85 |
85-86 |
86-87 |
87-88 |
Brothel offences |
51
|
42
|
44
|
41
|
54
|
39
|
Live on earnings |
4
|
1
|
11
|
4
|
2
|
7
|
Procuring |
1
|
1
|
0
|
2
|
3
|
6
|
Soliciting |
5
|
1
|
10
|
1
|
3
|
7
|
Total |
61
|
45
|
65
|
48
|
6[1]
|
59
|
Source: South Australian Police
Department 1987-88 Annual Report and communication with
South Australia Police Statistician, October 1989. |
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.
Continued
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