Posted by: euzoia | December 10, 2008

Criminalising prostitutes in current Australian legislation [in: Working girls : prostitutes, their life and social control]

Australian studies in law, crime and justice
Criminalising prostitutes in current Australian legislation

Published in:
Working girls : prostitutes, their life and social control / Roberta Perkins
ISBN 0 642 15877 0
Canberra : Australian Institute of Criminology, 1991
(Australian studies in law, crime and justice series)

In the last Chapter’s discussion on basic rights three rights might be seen to predominate in concerns for legislation on prostitution activities in Australian jurisdictions. They are:

* The right to commercial trading without infringing on the rights of others.
* The right to private sexual relations and to occupational choice.
* The social right to good moral order in society.

These lie at the basis of the three broad legislative trends in modern society. In the first view prostitution is a response to a large demand and, like gambling and drinking, which also have dubious reputations with the conservative and moral sectors of society, in this sense it is related to the old Christian attitudes of “necessary evil”. Thus, if it is not to be eradicated, it must be controlled and regulated through legislation. Control and regulation within this scenario usually restricts the trading of commercial sex, and is a system currently referred to as “legalisation”. In its broadest sense, it has a historical precedence in Athens of the Classic Period, in the Roman Empire, in the late Medieval Period, and in the licensing systems of 19th century Europe.

The second view adopts a legal laissez-faire approach. It believes that prostitution should be freely available with no restrictions, or few legal restraints, based on a tradition of freedom of choice. In the earliest periods of human history, in most non-western societies where prostitution existed, in European history until the late Middle Ages, and throughout most of 19th century England and its colonies, as well as North America, the operations of prostitutes were little restricted by law. In a post-criminalising law climate this laissez-faire approach has taken on a kind of utopian dream among most prostitutes subjected to harsh penalising legislation and is known as “decriminalisation”.

The third view is historically the most recent to be translated into law, deriving, as we have seen, from the high-powered moralism of the late 19th century. Throughout the 20th century European cultural contact with non-western societies wrought changes in traditional attitudes to prostitution, with such countries like Japan, India, Thailand and China (where traditionally prostitution had been officially approved of and certain kinds of prostitutes had a high social status) introducing harsh laws against commercial sex modelled on British and American legislation. One of the heritages of European colonialism has been the introduction of strict prohibitive laws on prostitution to curtail it among tribal peoples with no previous restriction. In Australia, as we have seen, prohibitive legislation is less than a century old. This approach in current Australian legislation is the subject of this Section.

Four Australian states – Queensland, Tasmania, South Australia and Western Australia – and two Territories – Australian Capital Territory and Northern Territory – possess legislation prohibiting activities usually associated with prostitution. It is necessary to understand that the act of prostitution itself, in which a commercial transaction exchanging sexual pleasure for cash takes place, is not prohibited by these laws (although, in New South Wales a recent law has prohibited “an act of prostitution… in a public place”). But in each of these jurisdictions the usual means by which prostitution can take place, such as soliciting, managing a brothel, consorting with prostitutes, advertising, and, in most cases, using a private flat/home, is prohibitive. A comparison of the various laws in each state/territory can be seen in Table 2.1A. The most striking variation on this table is between the states and territories mentioned above and Victoria and New South Wales. The latter two states, in fact, have adopted systems of “legalisation” and “decriminalisation” and will be the subjects of discussion in the subsequent Sections in this Chapter. For those interested in comparing Australian legislation with other Western countries, Table 2.1B includes some laws in New Zealand, England, and North America.

* Table 2.1A : Prostitution laws in offences and crime statutes in Australian states and territories (PDF 154kB)
* Table 2.1B : Prostitution laws in statutes of New Zealand, North America and some western European countries (PDF 186kB)

The current laws in the four states and two territories are directly descended from the legislation of the early Federation period, with the refinements that occurred in the immediate pre-war years prior to 1939. The main changes that have taken place since then have been of a minor kind, such as altering the names of Acts to give them a less “oppressive” designation. In 1976, for example, the South Australian Government changed the name of the Police Offences Act, 1953-75 to the Summary Offences Act, but the actual prostitution laws remained more or less intact. Other minor alterations included amendments to sexist terminology, such as in the Tasmanian legislation the Criminal Code Amendment (Sexual Offences) Act of 1976, s. 71 amended previous references to “female” in the Criminal Code to “person”. On the other hand, the stigma of old terminology, such as “common prostitute” and including prostitutes with “reputed thieves”, “known criminals”, and “vagrants” as a single category in some laws continues in the legislation.

Perhaps the most important legislative initiatives were those of the territorial ordinances becoming parliamentary Acts and ordinances passed by the territorial governing bodies. Originally the Northern Territory adopted laws made by the South Australian parliament, and copied its Police Offences Ordinances from the South Australian model in 1923. But with self-government in 1978 this ordinance became the Summary Offences Act 1979, and an autonomous Criminal Code Act came into force in 1983. However, an old South Australian statute, the Suppression of Brothels Act of 1907, is retained to control “brothel keeping”.

In the Australian Capital Territory the same autonomy as the Northern Territory has not occurred, but Canberra’s administrative body introduced the Territory’s Police Offences Ordinance in 1930, and in 1942 its Crimes Ordinance was a carbon copy of the New South Wales Crimes Act 1900 with the same laws dealing with the exploitative aspects of prostitution (pimping, procuring, under-aged employment in brothels).

The laws in these states and territories fall into a number of categories for the purposes of controlling prostitution: for example, the offences, crimes, health, liquor and tenancy statutes. We will concern ourselves here with the criminal law statutes of misdemeanour offences and certain felonies. Soliciting, pimping, consorting, and “brothel keeping” are usually classed as “misdemeanours” and found in the Police or summary offences laws. Procuring, detention, and the ownership or management of brothels are found most often among the more serious crimes listed in the Criminal Codes. The most serious crimes of all are those involving procuring by coercion, fraud or drugs, and the procuring of underaged females.

Soliciting is treated variously by the different jurisdictions as a relatively minor offence, although penalties attached to the appropriate laws (as at 1 October 1989) can be as high as a $1,000 fine, or as low as $10. In the ACT Police Offences Ordinance, a “common prostitute” who solicits or loiters in a public place for the purposes of prostitution can be fined a maximum of $10 although there is provision for a magistrate to order recognizance for good behaviour for a period of up to one year, and if this is not achieved the person can be gaoled for up to half a year (ss 17A[a] & [b], 17B). In the South Australian Summary Offences Act soliciting can bring a maximum penalty of $40 or two months gaol (s 25 [a] & [b]), while in Tasmania’s Police Offences Amendment Act, 1987 it can result in a $100 fine or six months gaol (s. g[l][c]). In the Queensland Vagrants, Gaming and Other Offences Act a “known prostitute” found soliciting can be fined as much as $400 or imprisoned for six months by the court (s 5[1] [a]). For the purpose of this Act a prostitute, along with persons living on the earnings of a prostitute or consorting with one, is deemed to be a “vagrant”, or someone “with no visible means of support or with insufficient lawful means”.

Provision exists under the Act (s 5[2]) for a magistrate to take alternative measures for females convicted of soliciting. The court might have her detained in an institution (not a gaol) for up to one year, or impose imprisonment (supposedly if she is an “incorrigible”), or suspend any of the above penalties as it “thinks fit”. However, under a suspended sentence she may be arrested at any time if she fails to observe any of the conditions set by the court, and it may impose any of the suspended sentences.

In the Northern Territory Summary Offences Act soliciting can bring a fine of $500 or three months gaol, or both (s 53[l][a][ii]). Whilst a “common prostitute” may be fined $40 or one month’s gaol for soliciting under the Western Australian Police Act (s 59), she can receive the harshest of penalties for “persistently solicit(ing) or importun(ing) for immoral purposes” with a $1,000 fine or one year’s gaol elsewhere in the Act (s 76G[1][b]). Western Australia also includes other laws related to public soliciting. For example, in the Police Act “any common prostitute wandering in the public streets or highways behaving in a riotous or indecent manner” (s 65 [8]) can be penalised with a $500 fine or six months gaol. The act of soliciting might also be construed to apply in the Criminal Code (s 207[l]): “any person without lawful justification or excuse does any act [by which] … the comfort of the public is interfered with [or] obstructed in the exercise or enjoyment of any common right is liable to imprisonment for one ear.”

The meaning of soliciting for the purposes of the Law has been questioned in court3 to imply the active seeking of business in any public place, such as street, park, car parking lot, railway station, inside a motor car in a public place, in a theatre or a hotel or bar (although the liquor legislation in each jurisdiction usually permits the removal of prostitutes from licensed premises, or permits the prosecution of licensees who allow prostitution on their premises4). This means that a “common” or “known” prostitute might not be guilty of soliciting by simply streetwalking where she is approached by customers and does not initiate contacts with customers. South Australia, Western Australia and the Australian Capital Territory, however, possess laws against “loitering for the purpose of prostitution”, and this may be used instead of a soliciting law where police can show that a woman was on a street for prostitution or “immoral purposes”.

None of the above states or territories possess specific laws on customer soliciting, “kerb crawling” or “gutter crawling”, thus reflecting not just a legal bias but a police bias as well, since soliciting laws, unless specifically mentioning “common prostitutes” might be applied to customers soliciting as much as prostitutes. Police responses to accusations of bias include claims that prostitutes are usually easier to identify than customers on the streets, and that prostitutes more readily plead guilty.

The laws of “living on the earnings of prostitution” are aimed at those who depend “wholly or partly” on the income of a prostitute, with the added evidence of being “without lawful means”. Prostitutes are never charged with living on their own earnings, brothel owners and managers are usually charged under “brothel keeping” laws rather than “living on the earnings”, and suppliers of goods and services who extract higher than normal payments from prostitutes are rarely arrested under these laws. Although the current laws are non-sexist with women as well as men liable to arrest for “living on the earnings” of someone who is a prostitute, police bias continues to see men living with prostitutes as “pimps” in the traditional sense and they are more vulnerable to arrest than female lovers or female pimps (although these women are more often arrested for “consorting”).

All states and territories possess “pimping” laws. Under the SA Summary Offences Act the penalty for “living on the earnings” is a maximum of $200 or six months gaol (s 26). In the Tasmanian Police Act it is also $200 but has a gaol alternative of one year (s 8[1A][b]). Queensland’s Vagrants, Gaming and Other Offences Act carries a maximum penalty of $400 or six months gaol (s 5 [1][c]), while police also have automatic powers of search of premises believed to be habitually used by prostitutes and pimps (s 11[a]). The WA Police Act carries a maximum penalty of $ 1,000 or 12 months for “living on the earnings” (s 76G[l][a]), and the NT Summary Offences Act also has a maximum of $ 1,000 or six months or both for a first offence, but for second and subsequent offences there is an automatic conviction of 12 months imprisonment (s 57[1][h]). The ACT Police 0ffences Ordinance carries only an indictment penalty of a maximum of three months (s 23[j]). Comparisons between penalties under the soliciting laws and those for “pimping” show that the law treats “pimping” as the more serious offence. However, due to the fact that many more prostitutes are charged many more times for soliciting than pimps are for “living on the earnings”, these values seem to have false meanings in the practical logistics of police apprehension. Police argue that, once again, prostitutes are more easily identified, as well as more vulnerable to arrest, than pimps.

Consorting with prostitutes, living (cohabiting) with them, and in at least one instance, harbouring them are offences in all of the above states and territories (but not in Victoria or New South Wales). The “consorting” laws can be used as backstop legislation for controlling pimping, but much more often they serve to arrest prostitutes working in brothels. Penalties for consorting are often as severe as those for pimping. In the SA Summary Offences Act consorting with “reputed thieves and prostitutes” can bring a fine of $200 or six months imprisonment (s 13), while occupying the same premises “frequented by reputed thieves or prostitutes or persons of notoriously bad character” can result in a $ 1 00 fine or three months gaol (s 21). Tasmania’s “consorting” law (s 8[2]) in the Police Offences Amendment Act can bring a penalty of $200 or one year’s gaol. For “harbouring prostitutes” in Tasmania, under the same Act this can result in a $200 fine or six months gaol (s 10[l][b]). In Queensland’s Vagrants, Gaming and Other Offences Act consorting carries a penalty of $400 or six months (s 5[1][d]), but in the ACT Police Offences Ordinance it is an indictable offence, with a maximum of six months (s 22[fl) imprisonment. In the NT Summary Offences Act a person found to be consorting is charged with pimping (s 57[l][h]) for the first offence, but for any subsequent offences he/she faces the maximum conviction of 12 months gaol (s 57[3]).

Under the WA Police Act a person found to be an “occupier of a house frequented by reputed thieves and prostitutes” (65[71) or ,. consorts with reputed criminals or known prostitutes” (65191) faces a maximum penalty of $500 or six months in each case. A person who is in the “habitual company” of a prostitute and is “without lawful means of support” is deemed to be living on her earnings and can be charged in s. 76G(2) with pimping and fined a maximum of $ 1,000 or receive 12 months imprisonment. The language of this WA legislation, no less than others, indicates precisely where the law locates prostitutes. Although the offences committed by prostitutes, such as soliciting, vagrancy, consorting, and in some cases, “brothel keeping”, are usually much less severe than those committed by “reputed thieves”, “known criminals”, “rogues”, and “vagabonds”, the legal implications are that their associations with criminals indicates conspiracy and accessory. Since in WA law prostitutes are assumed to be always female, and female criminality is often associated with contravening sexual codes, there is a strong relationship between prostitution and female crimes in popular thought. This then is reflected in the law which associates prostitutes (“bad women”) with criminals (“bad men”).

The offence of “brothel keeping” in some states is also considered a crime with serious consequences. Even in the most lenient instances penalties usually involve a scale of punishments dependent on the extent of receivability. In the NT Suppression of Brothels Act (old SA legislation retained in force in the Territory), a person convicted of “brothel keeping” or leasing premises for the purpose of prostitution for the first time receives a maximum fine of $40 or three months gaol, but for subsequent offences the penalty increases to $80 and a recognizance of 12 months, with imprisonment of six to twelve months, depending on his/her behaviour in accordance with the court order and his/her record (s 3). Any woman found to be on any premises held out to be a brothel who refuses to disclose the name of the owner/manager may be charged in his/her place, and her husband/lover living with her can be charged with “living on the earnings of prostitution” (s 7). Under the SA Summary Offences Act “brothel keeping” brings a maximum of $ 100 fine or three months gaol for a first offence, and $200 or six months for subsequent offences (s 28). The Act also provides for landowners or tenants leasing or sub-letting or “permits any premises to be used as a brothel” with penalties of $200 for a first offence and $400 or six months for subsequent offences (s 29).

The ACT Police Offences Ordinance penalises “brothel keeping” with up to 12 months imprisonment (s 18[a] & [b]). In Western Australian legislation “brothel keeping” can be penalised under laws in both the Police Act and the Criminal Code. The first is the most lenient and is used more often as a deterrent than the second. It includes keeping, leasing or owning premises used as a brothel and can bring a penalty of $100 or six months for the first offence, or $200 or 12 months for subsequent offences (s 76[E][1]). In the Criminal Code “brothel keeping” is considered a serious crime but is used only in certain circumstances, such as for convicting a “keeper” known to be detaining women against their will, employing under aged girls, or drug dealing on the premises. Punishment is indictable for up to three years gaol for “brothel keepers” (s 209) or for “any person who appears, acts or behaves as master or mistress having care or management is to be taken as the keeper” (s 213). Similar legislation is found in Queensland, with the Vagrants, Gaming and Other Offences Act penalising “brothel keepers” with $400 or three months for a first offence and $800 or six months for subsequent offences (s 8), while under the Criminal Code a “brothel keeper” (s 23 1) and whoever “acts as master or mistress having care and management” (s 235) can receive maximum penalties of three years imprisonment with “hard labour”. Tasmania’s Criminal Code is the harshest of all, carrying a maximum penalty of 21 years gaol for “brothel keeping” or a penalty at the discretion of the judge (s 143).

One of the most perplexing problems in prostitution legislation is determining a legal definition for “brothel”. Much of this has varied in accordance with court decisions in individual cases. As we have seen, early Federation legislation for the states established legal definitions of the term (pp. 78-9) according to English cases, such as Singleton v. Ellison and Durose v. Wilson, which have been confirmed in more recent cases.5 Queensland legislation has been most influenced by this English trend, whereby a single prostitute on a premises does not constitute a brothel, although a block of flats in which a prostitute worked in each one might he so regarded as a brothel. In Western Australia a single prostitute on premises may not disclude the premises from being declared a brothel, but, it appears that any prostitute who sees and services a client in her own home is not “keeping (these premises) for the purposes of prostitution” (Dixon 1982, pp. 8-10). In Victorian legislation a similar approach to the question of a single prostitute’s premises not being a brothel was upheld in an early court decision (Barrington v. Rochfort [1926] VLR 492). Likewise New South Wales courts have favoured the opinion that one prostitute is not a brothel when determining the meaning of brothel as a “disorderly house”.6 In a notable South Australian case, the Supreme Court acquitted a woman from “keeping a brothel” because she managed an escort agency where the act of prostitution, defined as sexual intercourse for a payment, did not take place (Bosch v. Samuels [1972] 3 SASR 37). However, in the appeal, the High Court reversed this decision by claiming that contact with the place by men seeking to have intercourse elsewhere constituted the premises as a brothel (Samuels v. Bosch [1972] 127 CLR 517).

As with the “pimping” laws, so also “brothel keepers” are much less often charged with an offence than prostitutes because they too are difficult for the police to identify, as well as less vulnerable to arrest than prostitutes. Prostitutes working in brothels are subject to various “consorting” laws and offences of occupying premises “frequented by known prostitutes” found in the statutes mentioned earlier. Landowners and lessors are easier to locate than “brothel keepers” who do not own the premises and provide fictitious names as lessees. Landowners noted on public record as possessing property used as a brothel are liable to arrest under the SA Summary Offences Act if they persist in wilfully letting to prostitutes in spite of warnings (s 31[3] & [4]), or under the WA Police Act (s 76F[3]) or Tasmania’s Police Offences Act (s 11). In the ACT whoever leases, lets or sub-lets a caravan for use as a brothel is liable in the Police Offences Ordinance (s 19[a]), and in Queensland’s Vagrants Gaming and Other Offences Act lodging house “keepers” are liable for permitting prostitutes as boarders (s 9). Penalties for these offences are similar to those for “brothel keeping” in the offences statutes. In any case, landowners do have provision in the various tenancy laws to enable them to evict those involved in prostitution on their premises, and to make leasing contracts null and void.7 In the NT Suppression of Brothels Act such provision exists with ss. 8 and 9. Even where a landowner is aware of the use of his/her property for prostitution, he/she may still act accordingly either by pretending to be unaware or treating police intervention as a warning to exercise their rights as landowners or suffer the consequences.

Procuring a person for prostitution is considered among the most serious crimes in the prostitution laws. It is included in the criminal codes of each state and territory and usually brings an indictable penalty. Procuring takes a number of forms, depending on the nature of the act, from inducement to drugging or use of violence on the victim, and depending on the age of the victim. Penalties are usually dealt in accordance with the severity of the case. Thus, a bound and gagged, drugged young teenager is likely to be very much more serious in the eyes of the court than an adult woman persuaded to work as a prostitute through a procurer’s charm. In the WA Criminal Code procuring a woman to become a “common prostitute” or an “inmate of a brothel” (s 191[2],[3] & [4]), procuring a woman for prostitution through false pretences (s 192[2]) or detaining a woman in a brothel against her will (s 194[2]) bring a maximum penalty each of two years imprisonment with hard labour. In the Queensland Criminal Code, for procuring any woman, not a “common prostitute”, for unlawful carnal knowledge, including prostitution (s 21 7 [2]), for using threats, drugs or fraud to procure a woman (s 218), for detaining a woman against her will (s 220) can each result in a gaol sentence with hard labour of up to two years, while for assisting or permitting a man to have unlawful carnal knowledge of a woman (s 221) can bring another three-year sentence. In the NT Criminal Code the procuring of any person for prostitution by any means carries a maximum indictable penalty of three years (s 136[a]).

The SA Criminal Law Consolidation Act 1935 prohibits the procuring of a person to become a “common prostitute” or an “inmate of a brothel” (s 63) and to do so through the use of threats, fraud or intimidation (s 64[b]) can bring a maximum of seven years gaol each. In the ACT Criminal Ordinance enticing a female under 21 years of age into prostitution carries a maximum penalty of seven years imprisonment (s 91A) and for procuring any female through the use of threats, violence, fraud or drugs can bring ten years gaol (s 91 B). The severest penalties occur in the Tasmanian Criminal Code, in which procuring a person for prostitution (s 128), doing so with drugs, threats and intimidation (s 129) and detaining, a woman in a brothel against her will (s 130[1]) each carry a maximum penalty of 21 years imprisonment or punishment at the judge’s discretion.

These procuring laws reflect the public hysteria of “white slavery” existing in the late colonial and early federal periods but seem much less appropriate today. Even so, they remain in force to dissuade individuals from attempting to force others into prostitution. Although only occasionally used, they might be applied at times in the particular case of a prostitute persuading and encouraging another woman to take up prostitution. In this sense these laws are open to police discrimination, as has been the case in a recent Californian incident.8 Like all prostitution offences, the procuring laws continue to reinforce the popular notion of prostitutes as “bad women” by protecting “good women” from becoming “bad”. They imply that women require some insidious manipulation by outsiders (usually men) to become prostitutes.

In the minds of the public, the police and the courts the most heinous of the prostitution crimes is the procuring of under-aged women. The age of consent for lawful carnal knowledge varies from state to state, 9 and this is usually the basis for protection in the prostitution laws. In Tasmania’s Criminal Code it is a crime to entice into prostitution or carnally “defile” a girl under 17 years under a threat of 21 years gaol (s 132[1]). In the ACT Criminal Ordinance the employment of a girl under 18 years in a brothel is illegal, bringing indictment of up to five years gaol (s 91D). In the Queensland Criminal Code the procuring of a girl under 18 years for “unlawful carnal knowledge” (or prostitution) can result in two years hard labour (s 217 [1]). In the SA Criminal Law Consolidation Act the employment of a girl under 17 in a brothel carries a penalty of up to seven years gaol (s 65). In the WA Criminal Code allowing a girl under 21 years in a brothel can result in a penalty of two years hard labour (s 194). A common defence of brothel managers charged under the above laws is that they were led to believe the girl was much older, but rarely do these succeed in courts of law. More likely successful defence is achieved in the case of a client in street prostitution who claims he believed a girl was older than the legal age of consent, particularly if she is only a year or two younger than the legal age. Inscribed into these attitudes are popular notions that brothels are places of entrapment for unwitting females, while on the streets women go wilfully “beyond the pale” of “common decency” and attract less sympathy. Also, the age of consent statutes. were designed to protect a female’s virginity, whereas, quite obviously a teenage prostitute has no virginity to protect, but even here there is a toleration point. The excuse of being duped into believing a girl is older “than she looks” no longer holds when a girl is under 14 years, and courts generally take the dimmest view of all to girls of 13 or less prostituting themselves on the street. Then the prostitutes are no longer held to blame, but the clients are, for encouraging innocent children to have sex with them.

Whilst the above represent the laws controlling prostitution in the criminalising legislation of Australia, Western Australia is a special case. Although its laws, like the other states and territories above, are ostensibly aimed at eradicating prostitution through criminalising the activities associated with commercial sex, it adopts a practical approach to the “problem” of regulation through an officially recognised “containment and toleration” policy. In the words of Commissioner Norris of a Royal Commission investigating the prostitution legislation in Western Australia in 1976, this policy evolved from the practices of the Consorting Squad “to control and contain the evils associated with prostitution.” (Western Australia 1976). In effect it is a “necessary evil” approach, but with the use of laws of prohibition. It requires the police to turn a blind eye to the existing legislation in some instances and enforce it in others. The manipulative and discriminatory nature of this police practice is quite obvious, but it does enable a certain amount of practical application for police control over prostitution. Police have limited the number of brothels to some 15 in Perth and four in Kalgoorlie, and nine escort agencies: street prostitution is simply unacceptable.

Under this contradictory policing system, tolerated brothels are provided police protection in exchange for information on drug dealers and criminal activities. Workers in these brothels are required to register at a police station, providing their names, personal details and photographs. In Kalgoorlie they are closely scrutinised and their movements restricted:

The women are not allowed to have relatives within a 500 kilometre radius, cannot have their brothers to visit, are not permitted to have stable relationships with local people and they are restricted to certain areas of the town. The are not allowed inside any hotel … or in private homes unless accompanied by a chaperone. The local TAB is out of bounds and access to the swimming pool is restricted. They are subject to dusk to dawn curfew, and there is an unwritten convention that they don’t attend social functions in the town. The women must live in one of the brothels (Marshall 1986, p. 9).

Unlike legislated “legalisation”, this kind of police control dictates terms and makes demands that are both humiliating and discriminating to prostitutes and “madams” in the business. In some respects prostitution legislation in Western Australia is the most oppressive to prostitutes in this country, for it not only possesses laws making prostitution activities illegal, but an official police manipulation is also condoned. In addition, the Local Government Act 1960 s. 206, enables Councils to pass by-laws restricting or prohibiting brothels and “brothel keeping” in municipal zones.

In 1982 the Western Australian Criminal Law Revision Committee established a working party to review the state’s prostitution legislation. Recommendations for “decriminalisation” with planning regulations were made and for removing the term “common prostitute” from the statutes. No legislative changes occurred following this report (Criminal Law Revision Committee 1982). In 1991 a Western Australian Community Panel on Prostitution has made recommendations to repeal the current laws and to introduce a licensing system for brothels, escort agencies and single prostitutes premises. The South Australian Government also conducted an inquiry into prostitution and its report was tabled before Parliament in February 1980 (SA Select Committee 1980). The recommendations of this report demonstrated a bold advance in parliamentary thought at the time. It called for a repeal of all present prostitution laws, for the legal right to operate a brothel in a nonresidential area, for a right to discreet advertising, and for the right of prostitutes voluntarily to support whomever they desired. It was referred to as a “decriminalisation” but the restricted zoning of brothels, and the retention of the laws on street soliciting, meant that it was a form of “legalisation” instead. The “Millhouse Bill” (named after the member of the Legislative Assembly who presented it) came before Parliament with the proposed legislative changes in accordance with these recommendations and was defeated by a narrow margin (Private Members’ Bill No. 31 1980).

In 1986 the Hon. Carolyn Pickles, MLC, also introduced a private member’s Bill calling for “decriminalisation” to the South Australian Parliament. Its proposed laws included limited advertising, and the approval of “small brothels” (with not more than two prostitutes at the same time, and not more than two bedrooms) provided these were not in residential zones or near churches and schools. But, like its predecessor, soliciting and “loitering… for the purpose of prostitution”, were prohibited. The “Pickles Bill” was defeated by a single vote (Private Member’s Bill No. 18 1986). Quite obviously, at the time, the South Australian Parliament was in a frame of mind to seriously consider changes to the law to enable a form of “legalisation”.

In the post-war years and the 1950s the Queensland Government developed a “toleration” policy on prostitution that allowed the establishment of “red light” areas in inner Brisbane and the north coast town of Townsville, as well as the introduction of brothels to the Gold Coast (Winter 1976, p. 46). However, soon after the Country-Liberal Party came to power in 1957 the attitudes of the former Labor Party Government were reversed, with enforcement of existing legislation and the closure of brothels. Since then Queensland has dealt with the existence of prostitution (usually submerged beneath the cover of “massage parlours”) with a heavy hand. But situations have been so repressive that police corruption became a major problem and the Government had to respond to public allegations with a Royal Commission to investigate police “extra-curricula activities” in a hotel well-known for its prostitutes in 1963, and again in 1986 with the Fitzgerald Inquiry (1986-89) to investigate claims of police corruption.

The Queensland situation highlights a major criticism of the prohibition approach to prostitution legislation: that harsh laws invite police corruption. This kind of corruption derives from a common belief among police that prostitution is inevitable regardless of how strictly the laws are enforced; it then becomes a matter of police regulating rather than eradicating commercial sex activities, and, without the legal means of such regulation individual policemen resort to demanding payment to “turn the other way”. Soon this kind of corruption involves most officers whose duties include the apprehension of prostitutes contravening laws, until it becomes an institution within the police force, rationalised as a normal way of dealing with prostitutes who would otherwise be constantly before the courts or continue to work in clandestine operations difficult for police to detect. The confidentiality of police involvement in corruption inevitably has to involve prostitutes and brothel managers under threats of silence. The case of Shirley Brifman, a Sydney prostitute who managed brothels in Brisbane as well, serves as an object lesson. When she threatened to expose 34 detectives for receiving payments from her she was found dead from an “overdose” in a Brisbane flat in 1971 before she could appear as a court witness on the matter (Wilkinson & Bacon 1983; Bacon 1983).

Police claims of difficulties with detecting and identifying brothel managers, pimps and clients, lead to prostitutes bearing the brunt of arrests and payments to police. Attempts by women to avoid both, results in the development of clandestine operations such as “massage parlours”, subterfuge on the ‘phone, and mobility among streetwalkers. Arresting officers counteract these with entrapment methods, such as pretending to be a potential client.10 Prostitutes then devise a number of ploys so as not be trapped. Making a client get completely undressed before discussing sex, and checking the contents of a client’s clothing while he is showering to see if he carries anything that might identify him as a policeman, are two common procedures of prostitutes before making any incriminating comments. Another ploy, that of having the client place the fee on a table and leaving the room before the prostitute took possession of it, was the subject of a South Australian Supreme Court case. The arresting officer charged the woman before she touched the money but the court acquitted her of the charge because she had to have taken possession of it before committing an offence (Samuels v. Warland [1977] 16 SASR 4 1).

A glance at Table 2.2 will indicate the extent of arrests for prostitution-related offences in each state.
Table 2.2 : Prostitution-related arrests for fiscal year, 1986-87 State Population in 1985 Prostitution arrests Pro-rata of arrests/ population
TAS 442,100 6 1: 73683
WA 1,407,500 46 1: 30598
SA 1,362,900 61 1: 22343
QLD 2,546,400 920 1: 2768
Total 5,758,900 1033 1: 5586
Sources: ABS 1986; various Police Department Annual Reports 1987; ABS Court Statistics 1987.

Given that the pro-rata probability of prostitute populations in community populations across Australia is unlikely to vary much, Table 2.2 indicates a decided lack of consistency of police enforcement in jurisdictions with prohibitionist legislation. Obviously, there are political and ideological factors involved in which Queensland has the highest level of intolerance, and Tasmania the lowest.

In the Territories arrests have been almost negligible. One newspaper in 1985 claimed that no arrest for prostitution had taken place in the ACT since 1978 (The Canberra Times, 18 December 1985). In correspondence with the Federal Police, they advised on 5th October 1989 that no arrests were made in 1987-88 and two convictions for “managing a brothel” occurred in the five preceding years. The Northern Territory Police advised on 30th October that they too had made no arrests in the five years prior to 1987, and no convictions occurred in 1987-88. In 1988-89 a charge each was laid for “keeping a brothel” and “living on the earnings”, but these were dismissed or withdrawn. In both areas police admit to the existence of prostitution, but they appear to pursue an unofficial toleration policy provided the industry remains invisible and unobtrusive. Consequently, no street prostitution is known in either Territory.

Table 2.3 compares the arrests for prostitution-related offences in Tasmania, Western Australia and Queensland.
Table 2.3 : Arrests for prostitution-related offences in Tasmania, Western Australia and Queensland Type of Offence 1986-87 1987-88 1988-89
TAS WA QLD TAS QLD WA QLD
Keep/Manage premises 35 242 236 36 181
Living on earnings 6 1 51 2 76 4 99
Soliciting/ loitering 4 83 101 36 72
Using premises 544 59 115
Total 6 40 920 2 472 76 467
Source: Correspondence with the Tasmania Police 13 October 1989; Western Australia Police, 7 November 1989: Queensland Police Department, 12 October 1981)

The Tasmanian figures seem to support a long-held contention by the state’s authorities: that prostitution is rare on the island. More likely, however, is the fact that prostitution which remains clandestine is ignored, while the visible “soliciting and loitering” forms of prostitution are quickly dealt with. In Western Australia, in spite of its “containment and toleration” policy, arrests for “keeping/managing a brothel” still occur. Undoubtedly, these were instances of persons attempting to establish premises for prostitution without reference to the police first, and most likely were independent women operating outside the brothel system. The significant increases in “soliciting/loitering” are not easily explained since it is hardly likely that a sudden influx of street prostitution occurred. It may have been a blitz on a handful of street workers in a police response to a renewal of official discussions on “decriminalisation” and “legalisation” in 1988. The disproportionate rates of arrests of prostitutes, “brothel keepers” and “pimps” (more likely husbands or lovers) in Queensland with probably no more than 50 per cent more prostitutes than Western Australia and the same laws as that state, indicates a much higher level of intolerance. Certainly, this police pressure has not eradicated prostitution, as indeed both the laws and the enforcement reflect this intention. The fluctuations seen in the figures are due to political factors rather than effective enforcement. The 920 arrests in 1986-87 represent a peak in the last four years. It is 24 per cent higher than the 748 arrests for 1985-86, and 95 per cent higher than the 472 arrests for 1987-88. No doubt 1986-87 witnessed exceptional police activity with regards to prostitution arrests because this was a time when the Fitzgerald Inquiry on police corruption was at its publicity height. Significantly, though, it was the prostitutes who received the major impact of this “blitz”. It is also a good example of state manipulation of laws in a jurisdiction with repressive legislation which is applied at will.

The situation in South Australia offers an interesting comparison with both Western Australia and Queensland. Its legislation is slightly different to the phraseology of these other two states and there is no “containment/toleration” policy. Table 2.4 indicates arrests in South Australia for the 1980s.
Table 2.4 : Arrests for prostitution-related offences in South Australia Type of Offence 82-83 83-84 84-85 85-86 86-87 87-88
Brothel offences 51 42 44 41 54 39
Live on earnings 4 1 11 4 2 7
Procuring 1 1 0 2 3 6
Soliciting 5 1 10 1 3 7
Total 61 45 65 48 6[1] 59
Source: South Australian Police Department 1987-88 Annual Report and communication with South Australia Police Statistician, October 1989.

Compared to the Queensland figures above (which fluctuate by 50 per cent) the South Australian figures are more stable (with a fluctuation of 30 per cent). There is even no indication of exceptional police activity in 1986 while the “Pickles Bill” was presented to Parliament. Possibly the lobbying of the Prostitutes Association of South Australia in 1984-95 might account for increases on “living on the earnings” and “soliciting”. Of the cleared offences for South Australia between 1982-83 and 1987-88, 265 were of females and 62 of males. In common with police the world over, there is a clear police bias towards arresting women. The vast majority of brothel offences involved women as prostitutes or managers, and nearly all of the “pimping” also involved women. Presumably, these female “pimps” were brothel “madams”. Once again it is the women’s visibility which makes them vulnerable to arrest.

Criminalising legislation which is designed to prohibit prostitution altogether, in practice serves as a mechanism of control reinforcing the traditional power structures of moralism and patriarchy wielding immense suzerainty over women and sexuality. Through its labelling of identifiable “bad women”, its enshrinement of female chastity, and its draconian punishments, this form of legislation continues to prop up the ideals of 19th century moralism. After a century of application, this form of legislation no longer serves its original purpose of eradicating commercial sex practices, but plays into the hands of the police and other state apparatus for the purpose of abusive power. Consequently, it should be clear to legislators by now that prohibition laws have outlived whatever moral purposes they were thought to serve in the Victorian notions of propriety and proper conduct.


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