Does Decriminalization Do It?

Eurydice Aroney: In the early 1980s I worked in a small Sydney BDSM brothel to supplement my student allowance. A lesbian couple oversaw business, but we operated as a co-op, sharing in the cleaning and advertising decisions. Nevertheless, each week 40 percent of earnings would be handed to two absent male leaseholders, who contributed nothing as we saw it. As business prospered, our landlords demanded a larger cut and, despite objections, installed a male client as manager. Having none of it, we workers went on strike. After trying to negotiate our return to work I was threatened with having my legs broken, and another worker's motorbike was set on fire.When we turned to the Australian Prostitutes Collective NSW (APC) for protection, its office and drop-in center manager Julie Bates advised that an appeal to police would be pointless.1 Why? Soliciting for prostitution in the state of New South Wales (NSW) had been decriminalized in 1979 with the repeal of the Summary Offences Act 1970. So selling sex itself was no longer an offence. But the Prostitution Act 1979, which replaced it, continued to criminalize anyone living off the earnings of sex work, such as brothel owners, managers, receptionists, and leaseholders of buildings used for sex work. Other prostitution laws prohibited the advertising of sex work and gave the courts power to declare a dwelling "a disorderly house" and apply penalties. The Prostitution Act 1979 had neglected to decriminalize the buildings and staff of brothels, where an estimated 70 percent of NSW sex workers serviced their clientele. Our brothel door had likely only remained open because of an "understanding" between the police and our leaseholders. On the suggestion of the APC, we met with the owner of a large brothel wanting to expand her business. The former sex worker turned madam hired us all on the spot. A single woman whose own mother had also been a sex worker was able to protect us where the police had failed.Disgusted by the hypocrisy, I volunteered with the APC to lobby for further law reform. I imagined that decriminalization (the repeal of all prostitution-specific laws) would allow sex workers the freedom to choose how and where we worked. For example, in small worker co-ops, as escorts or sole private operators, in large commercial brothels, or on the street with access to hotel rooms by the hour. I assumed that decriminalization would mean that we could appeal to police if threatened and no longer be vulnerable to violence and extortion from unscrupulous landlords, criminals, and the police themselves. But the making of sex into "work" with choices and protections like other occupations proved far more complicated.By 1983 the APC were already lobbying the NSW Labor government to extend decriminalization to the whole sex industry, while defending street-based sex workers from the police backlash to the Prostitution Act 1979. On the streets, unlike in the brothels, it was possible to pocket all your earnings and select work hours and clientele to suit. Therefore, many brothel sex workers took to the streets following the decriminalization of street-based sex work, and their numbers soared in suburbs adjacent to the red-light district. Carloads of noisy onlookers were drawn to these same areas, which were undergoing rapid gentrification. A small group of residents, with the backing of police, then pressured the state government to amend the Prostitution Act 1979. The Prostitution (Amendment) Act 1983 prohibited street-based sex work in locations "near to" churches, schools, hospitals, and dwellings unattached to commercial premises. With the words "near to" police regained their previous discretionary authority and cracked down on street-based sex workers, who made up approximately 3 percent of the industry. At the same time small inner-city co-op style brothels were targeted for closure by the courts using the Disorderly Houses Act 1943 No 6. The decriminalization of sex work had stalled; in fact, it was going backward.2But sex workers retaliated, and working with feminists, health professionals, university students, and civil libertarians, members of the APC formed the Task Group on Prostitution and began to research the impact and policing of the laws, and to survey the sex industry in general.3 This research was submitted to the Select Committee of the NSW Legislative Assembly on Prostitution (1983–86), a bipartisan, all-male committee of ten tasked to "investigate and report upon the public health, criminal, social and community welfare aspects of prostitution in New South Wales."4 Before the committee's findings were published, the state and federal governments jointly funded the APC as part of Australia's pioneering public health policy response to HIV/AIDS, which was to pursue and embed partnerships between government and those communities most affected: gays, IV drug users, and sex workers.As a volunteer I regularly accompanied the APC cofounder, Roberta Perkins, on safe sex outreach to around two hundred brothels, approximately twelve strip clubs, and half a dozen street-based sex work locales across NSW. Discussing law reform and its potential benefits to brothel workers was not always welcomed by management, and out of earshot we workers would discuss what decriminalization might mean. Perhaps access to sick pay and holiday pay? When in 1986 the Select Committee finally recommended the repeal of criminal laws targeting the sex industry and the decriminalization of the sex industry (albeit with some controls that we did not support) we were cautiously optimistic. But in the decade that followed governments ignored the committees' recommendation to decriminalize brothels.5 In the meantime, my final shift as a sex worker took place in a two-room co-op style brothel above a fruit and vegetable shop in Bondi.Julie Bates: By the late 1980s I'd been a sex worker (amongst other occupations) for eight years and helped establish funding for the Australian Prostitutes Collective. As a single mother, I hoped that decriminalization would mean that I would be able to pick up my son from school on time instead of being held for hours at the police station, as had happened upon occasion.I was working overseas when NSW finally decriminalized brothels with the Disorderly Houses Amendment Act in 1995. The act defined brothels as premises habitually used for prostitution even when only one sex worker was working on premises. Put simply, our workplaces would now be regulated by local government (councils) using spatial zoning controls to segregate and regulate the industry instead of criminal statutes.Returning home to Sydney in 1999, I got a job with South Sydney Council, which included the largest number of brothels in Australia in its local government area. Cleverly disguised as a "strategic planner" I helped refine and implement their sex industry policy. It was a world-first attempt to provide best practice guidance for the regulation of brothels and private sex workers and to bring them in line with other similar land uses. But I would soon discover that South Sydney Council was an outlier in its positive approach to implementing decriminalization, and most NSW councils had no intention of honoring the intent of the reforms.After finishing my work with South Sydney Council, I set up a town-planning company that specialized in assisting those wanting to lodge planning applications for brothel premises. These were often preexisting small businesses located in suburban shopping areas and residential streets. Brothel owners could ill afford to fit factory-style buildings to purpose and knew that their workers would be understandably reluctant to work in areas unpopulated after dark. But councils argued against owners in the courts, contending that the laws allowed them to confine brothels to industrial estates. In response many brothel owners then chose to operate outside of the regulatory system. A handful of councils employed private investigators who would pose as clients to gain evidence that premises were operating without approval.It became increasingly clear that in decriminalizing the sex industry the NSW government had failed to provide the training and the resources that councils needed to act as regulators. So, the NSW government appointed a panel with representatives from Sex Workers Outreach Project NSW (SWOP) and the Private Worker Alliance, along with members of local government organizations, council, and town-planning experts to produce regulatory guidelines for councils. The Sex Services Premises Planning Guidelines (published in 2004 but released in 2006) were intended to give councils "factual information on the nature and operation of the sex industry in NSW, an analysis of current planning practice concerning sex services premises, and options and strategies which would deliver improved outcomes for councils, the sex industry and the community."6 But unfortunately, most councils failed to refer to them.7In 2007 a Labor government introduced a law that permitted councils to turn off the power and gas if premises continued to operate without consent. That same year the government produced a template that councils were meant to follow while providing a greater range of zones where brothels could seek to locate. For the first time, government policy took note of the home-based sector, that is, residences used by private sex workers, and included them as a separate definition under the local planning controls. The definition of a brothel became two or more sex workers. Most councils then determined that the use of residences for sex work represented a prohibited land use while others required a development application in industrial zones, but again this proved unworkable, and no private worker has yet gone through the application process. Despite these new regulations, private sex work remains common in NSW, and no sex worker has been penalized for seeing a client at home or in a hotel.In 2015 the NSW Liberal (conservative) government appointed a Select Committee on the Regulation of Brothels to report on "the possible reform options that address the social, health and planning challenges associated with legal and illegal brothels."8 Seeing this inquiry as a potential threat to decriminalization, many activists, their representative organizations, and researchers (including me) gave evidence to the committee. Despite strong appeals from police that their powers to oversee the sex industry be reinstated, the government found that decriminalization was best placed to serve the health and well-being of sex workers.As HIV had once done, COVID-19 brought its own challenges, but decriminalization meant that I had a long-established working relationship with the government that enabled me to communicate directly with the Ministry of Health about how the industry could continue to operate safely under COVID-19 conditions. In 2021, when COVID-19 lockdowns were in place, I argued directly to the Ministry that sex services premises be deemed "personal services" such as hairdressers, nail salons, and physiotherapists. Following lockdown conditions, brothels and massage parlors were able to reopen alongside them without controversy.EA and JB: It's been over four decades since NSW began to decriminalize its sex industry and in our opinion, the job remains unfinished. According to Scarlet Alliance (the Australian Sex Workers Association) fewer than 15 percent of brothels operate with development consent.9 Migrant sex workers are more than twice as likely to work in massage parlors, where the primary service offered is relaxation massage (often including hand relief), and these premises are often part of the unregulated industry. While working conditions in regulated and unregulated premises have been found to be similar, massage parlors are more likely to be targeted by the Department of Home Affairs (which includes immigration) and police.10Mobile phones, online advertising, and the digital economy have transformed the sex industry, making it much easier for private workers to operate independently at home or in hotels. But while decriminalization has brought greater freedom and autonomy for these workers, this has gone hand in hand with what we might call the neoliberalization of the industry: sex work is seen as work, but most workers operate in a deregulated, highly individualized environment, and this reduces opportunities to organize and agitate collectively for workplace rights and protections like sick pay and holiday pay. This also applies to brothel workers, who are judged to be "contractors" while still subject to management-imposed strict workplace rules and penalties.On the plus side, NSW sex workers can and do appeal to the police and legal support networks for a redress of extortion, violence, and discrimination, even when working outside the regulations. In NSW "pimps" only "pimp" in the movies, and migrant sex workers with valid work visas do not risk deportation. The government health and safety regulator SafeWork publishes minimum standards for sex services premises, and members of the wider community largely accept (or are unaware) that there are brothels and massage parlors in their local shopping centres.11But perhaps the most pleasing aspect of decriminalization in NSW is that sex workers in other jurisdictions have been able to observe what's happened here and gone on to argue for more suitable policies. Sex work decriminalization bills have recently been passed in Northern Territory (2017) and Victoria (2022) with sex workers leading the charge. In both Victoria and the Northern Territory, sex workers ensured that protection for sex workers using antidiscrimination laws forms part of the deal. With the continued support of allies the NSW Greens Party has recently presented an antidiscrimination bill to parliament to protect sex workers and others in the sex industry. Protection like this is only possible with decriminalization.