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In 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[2]), "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[1]). The keeping, managing or assisting "in the management of a brothel" was an offence (s 11[1]) 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 [1978], 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:
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:
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[2]). 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[1]). 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[1]), unless the accused is exempt from this law as owner, manager or authorised staff of a legal brothel (s 12[2]). 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[3]). 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[1]), unless they can prove to the court that the infected person was not infected at the time of the alleged offence (s 13[2]). 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[3]). 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[1]-[3]). Under s. 14[5] 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[5]). 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[1]-[3]), 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[1]&[2]), 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[1]), 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, 1908-78 While 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,
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,
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[2][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,
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,
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:
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:
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".
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