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[1][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[1][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[1]), 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[2]). 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 1980s

As 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[1]). 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[5][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[1]): 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[2]), 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[5][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[1]): Each of the persons taking part in an act of prostitution

1. in, or within view from, a school, church, hospital or public place; or
2. 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[2]), 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.

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[1]). 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".

Conclusion

In 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.

Continued on Next Page

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