Sex work regulation tests agencies' unspoken relationship rules

By Stephen Easton

November 18, 2015

What is to be done about the sex industry? It’s a complicated question, and a group of New South Wales legislators think their state’s answer needs a major update.

The Legislative Assembly Select Committee on the Regulation of Brothels was not unanimous in its conclusions last week, but a majority of members agreed that when NSW decriminalised brothel ownership in 1995, it went too far in the other direction, leaving sex work under-regulated.

The document they have produced offers a thorough discussion of the issues that affect all jurisdictions when it comes to regulating high-risk activities that are entrenched in society.

A “substantial section” of the unregulated industry operates “underground” out of premises without proper planning approval, according to the report. Based heavily on police testimony, the inquiry concluded there was “significant potential” for these unapproved brothels to be tied up with organised crime and human trafficking for sexual slavery, as well as other serious labour rights violations.

The report notes “the only real regulation to establish a brothel” in NSW is via planning laws and accepts councils are struggling to enforce them.

It recommends a new licensing regime that requires brothel owners to be “fit and proper” and have prior planning approval like liquor licensees. Its most controversial recommendation — given the role played by corrupt police in the bad old days before 1995 — is to establish a special “co-ordination unit” within the NSW Police to lead enforcement of the proposed new regulations by multiple agencies, including a new licensing body. The role and powers of the police would be modelled on those they currently exercise over owners of tattoo parlours.

However, the report rejects registration for individual sex workers and firmly supports their profession remaining entirely legal. The register of premises and their owners would be kept private.

“…harder to get a dog licence than it is to work in the sex industry at the moment.”

One thing registration would definitely improve is data on the industry: the best estimate the committee could find put prostitute numbers anywhere between 1500 and 10,000, while the police have a “ballpark figure” of about 340 brothels.

The committee, which conducted site visits and investigated the state of play both in NSW and Victoria, recommended against following the Victorian system of registering some sex workers. It accepted this could lead to “a lifetime of stigma for sex workers, many of whom work in the industry for only a small part of their lives” as well as a negative effect on public health.

The review also rejected the Nordic Model, which criminalises the clients of sex workers and was attractive to a few parliamentarians from Western Australia, Victoria and the ACT who made it the subject of a study tour last year. Advocates of the Nordic Model believe prostitution is inherently dangerous to sex workers and favour prohibition but without criminalising the more vulnerable of the two parties to the transaction.

Sex rights for people with disabilities got a good hearing. The committee’s first recommendation is that councils consider making equal and safe access to brothels for people with disabilities a condition of planning approval. Touching Base, an advocacy group that participated actively in the inquiry, explains the little-known argument that “necessary personal and systemic supports must be provided” so people with disabilities can exercise their right to sexual expression.

The report also recommends consolidated legislation to contain the new framework and that NSW look to New Zealand — which has a similar regime to what it proposes — for “practical regulatory provisions” to improve public health. A uniform legal definition of a brothel is also recommended and advertising restrictions would be relaxed, also in line with NZ.

Those whose brothel license applications are rejected would be able to appeal to the Civil and Administrative Appeals Tribunal, and nobody could ever be rejected solely on the basis of being a former sex worker.

The report specifically recommends against licensing being used for revenue raising, and says if it is not implemented, councils should be given more support and funding to crack down harder on unapproved operators.

Independent of all its other ideas, the report argues that more cross-agency and cross-jurisdictional collaboration is needed, with police and occupational health and safety regulators at state and federal level, as well as NSW Health, the Department of Immigration and Border Protection and the Australian Taxation Office, working together to keep closer tabs on the sex trade.

Moralist pushback?

Organisations that aim to speak for sex workers are suspicious of any attempt to rein in the sector in NSW. Scarlet Alliance chief Janelle Fawkes sees the report as a moralist pushback against a world-leading decriminalised system and the thin end of the wedge that will see restrictive regulations return and drive more of the industry underground, putting prostitutes at greater risk. She also argues, backed by some research, that lots of councils do not accept brothels as legitimate businesses and do everything in their power to block them.

Others caution that such groups can also be seen as industry cheerleaders who above all support growth of the economy that sustains them.

Committee chair Alister Henskens writes that witnesses who argued some councils created the problem of unapproved brothels, by refusing to approve any, held up the City of Sydney as a model to follow. He adds that even so, it is still home to unapproved brothels masquerading as massage parlours.

While decriminalisation has given sex workers improved health and safety and a much greater chance of exercising their rights, it has also stimulated strong growth in an industry that still attracts criminal groups and involves workers in high-risk situations. The report notes criminals like prostitution because clients prefer cash payments and discretion, which is useful for money laundering, and that severe labour rights violations, illegal drugs and the horror of sexual slavery are still extant.

Sex workers reminded the committee they were not, in the main, helpless victims and their words made it into the report in its conclusion that:

“Some sex workers are highly independent and able to make a rational choice of their own free will about participating in the sex services industry.”

But the MLAs also heard of those who are “vulnerable because of poverty, drug addiction, mental health issues, language barriers and sexual servitude” and hence have less control over their circumstances. They recommend the NSW government ask its federal colleagues to look at making sex work illegal for foreign workers.

There was disagreement among members as to how much emphasis their final report should place on the vulnerability of some sex workers and the degree of criminal activity in the industry, and several members disagreed with the prominence given to testimony by deputy police commissioner Nick Kaldas.

Kaldas said about 40 brothels had recorded links to bikie gangs. He argued even one sex slave was too many, and “clearly” there were already more than that. “It is probably harder to get a dog and get a dog licence than it is to work in the sex industry at the moment,” he said, making a strong impression on Henskens.

On fears about a return of police to the space, Henskens argues the corruption risk was created by criminalisation of prostitution, so it is no longer an issue, adding that police are now subject to “robust checks and balances” and have not become corrupted by their role in overseeing tattoo parlours:

“Under the pre-1995 regime it was contended that sex workers did not report rape or violence to Police who were the regulators of their illegal conduct. Such concerns will not arise again under our recommended changes. Under our recommended regime, regulation is imposed upon the owners of brothels and not sex workers.”

Top photo: Kings Cross in Sydney, NSW by Soapstar D’lux via Flickr, CC2.0

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