A critical evaluation of the regulation of legal prostitution in Victoria.

A critical evaluation of the regulation of legal prostitution in Victoria in the light of regulatory theories such as those covered in this course, including an analysis of the aims and choice of regulatory methods of the current scheme, the effectiveness of the current scheme, and the nature and effectiveness of its consumer protections.

Introduction

For some the prostitution industry is just another service industry, where consumers buy and workers sell. For others it is an industry that represents immorality and depravity. Historically, the need to 'protect' society from the evils of prostitution has seen governments attempt to eradicate the industry with harsh criminal sanctions. The regulatory methods employed emanated from a belief that the problem required strict social control, control that only the government was able to administer. The evolution of knowledge with respect to the industry itself has seen societal attitudes change towards the 'dangers' of prostitution. Rather than attempt to eliminate the existence of prostitution, it has been recognised that the peripheral harms of the industry must be tackled.

Whilst regulators have changed their approach with respect to 'whether' and 'how' prostitution should be regulated, the methods used have drawn criticism. This paper will explore the current regulatory regime employed in Victoria to regulate prostitution, assessing its aims, who it attempts to protect, the methods used and evaluate the effectiveness of those methods.

What is regulation?

The term ‘regulation’ has a myriad of meanings, depending on the academic discipline from which it is explored. Governments and regulators have traditionally (and indeed currently) defined regulation as ‘any laws or other government ‘rules’ which influence the way people behave’, a concept defined by academic Julia Black as ‘centred regulation’. In explaining regulation the OECD adopts the following definition: ‘the full range of legal instruments by which governing institutions, at all levels of government, impose obligations or constraints on private sector behaviour. Constitutions, parliamentary laws, subordinate legislation, decrees, orders, norms, licences plans, codes and even some forms of administrative guidance can all be considered as ‘regulation’’. Black, on the other hand, adopts a definition that recognises the different actors involved in regulation which includes but is not limited to government control:

‘ regulation is the sustained and focused attempt to alter the behaviour of others according to defined standards or purposes with the intention of producing broadly defined outcome or outcomes, which may involve mechanisms of standard setting, information gathering and behaviour modification’.

Whilst it is argued that there is ‘conceptual confusion’ in the formulation of what regulation is, three main definitions of regulation can be gleaned from academic writings on the subject:

‘the promulgation of rules by government accompanied by mechanisms fro monitoring and enforcement, usually assumed to be performed through a specialist public agency.
any form of direct state intervention in the economy, whatever that form that intervention may take.
all mechanisms of social control or influence affecting all aspects of behaviour from whatever source, whether they are intentional or not.’

Historically, the first two definitions have represented the methods used to define and effect the majority of regulation. As evidenced in the definitions of regulation by governments, the understanding and exploration of regulation has been underpinned by the historical use of ‘command and control’ regulation. Baldwin and Cave explain that , ‘[t]he essence of command and control (C&C) regulation is the exercise of influence by imposing standards backed by criminal sanctions’. They further explain that:

‘ C&C thus involves the setting of standards within a rule, it often entails some kind of licensing process to screen entry to an activity, and may set out to control not merely the quality of a service or the manner of production but also the allocation of resources, products, or commodities and the prices charged to consumers or the profits made by enterprises’.

The strengths of command control regulation, according to Baldwin and Cave are that:

‘ the force of law can be used to impose fixed standards with immediacy and to prohibit activity not conforming to such standards…the regulator or government is seen to be acting forcefully and to be taking a clear stand: by designating some forms of behaviour as unacceptable; by excluding dangerous parties from relevant areas; by protecting the public; and establishing penalties for those involved in offensive conduct. Some forms of behaviour can thus be outlawed completely and the ill qualified can be stopped from practising activities likely to produce harms. The public, as a result, can be assured that the might of the law is being used both practically and symbolically in their aid.’

It is argued that command and control regulation in the form of explicit government regulation creates more certainty and is preferred by regulators in dealing with high risk, high impact public issues.

The effectiveness of command and control regulation, according to Black, can be undermined by the fact:

‘that the instruments used (laws backed by sanctions) are inappropriate and unsophisticated (instrument failure), that government has insufficient knowledge to be able to identify the causes of problems, to design solutions that are appropriate, and to identify non-compliance (information and knowledge failure), that implementation of regulation is inadequate (implementation failure), and that those doing the regulating are insufficiently motivated to regulate in the public interest (motivation failure and capture theory).

Also, command and control can induce non compliance as a result of a perception that the regulations are complex and difficult to understand and hence this perception acts as a deterrence from people trying to comply. Also, compliance costs, as a result of the regulations may be prohibitive ‘as the law does not reflect accepted commercial practices'.

As will be seen below, the method of regulation employed in regulating the prostitution industry in Victoria can be classified as command and control regulation. Hence, this theoretical examination of regulation and the command and control method of regulating helps to identify the vantage point from which regulators in Victoria attempted to achieve their desired outcomes. As Black states, command and control regulation works on the presumption that the state has the capacity to command and control, it is the only ‘commander and controller’ and that it is potentially effective in commanding and controlling. If it could be said that regulators in Victoria have worked from that presumption, it could be argued that the failures of the command and control methods outlined by Black (and Baldwin and Cave) should be evident in their system of regulating prostitution in Victoria. Without considering and employing those forms of regulation that form the ‘spectrum of regulation’, regulators (and the community) can be hampered in achieving their objectives by rigid rules, marginalisation and the increase in the very conduct that they wish to control. As identified below, many argue that these failures are evident in the current prostitution regulatory regime in Victoria.

Why Regulate Prostitution?

Relative to the existence of prostitution, until recently the answer to the question of whether prostitution should be regulated (and why) has been easy, in western society at least. The prevailing social attitude ‘that if prostitution is not suppressed by law the moral fibre and the sexual mores of the community will be threatened, not to mention the inevitable damage it is likely to do to the family institution’, meant that regulation was not only required but stringent in attempting to outlaw the practice. Prostitution represented ‘blatant promiscuity’, it was responsible for extra marital sexual relations and it involved sex without love, all outright challenges to the western Christian ideal. Prostitution spread disease, entrapped young women and was an affront to civilised society and as such ‘should be placed out of harm’s way (if not entirely eradicated)’. As society evolved and investigation into the world of prostitution progressed, those governing society discovered that prostitution was not going to disappear and the social problems associated with were only going to increase. Regulation shifted from ‘eradication’ to control of the effects. Interestingly, in Japanese society, where officially supervised prostitution had been in existence since 1185, prostitution was regulated by allowing prostitution districts (like the Yoshiwara) rather than trying to eradicate it. The acceptance of prostitution was justified on the grounds that society needed these districts as ‘a public latrine’ for the ‘supervised outlet [of] male sexuality’. The regulation of public morality protected society and ‘the daughters of good families from foulness’.

Modern times (in western society) have seen a divergence of views over whether or not prostitution should be outlawed, regulated or decriminalised. Those in favour of strong control still regard prostitution as an immoral, undesirable activity and that the state should, in establishing and maintaining the moral standards of the community, keep prostitution in check through criminal sanctions. In regulating, it is argued, the states is seen as condoning prostitution ‘and this is morally repugnant’.

Another, contrary view, is that the state ‘should not interfere with the sexual activities of consenting adults unless there are compelling reasons to do so’ such as criminal activity’. It is argued that prostitution, ‘when done discretely does not harm the community’.

Recently in Australia, it has been acknowledged that

“It is safe to assume that prostitution will continue to exist, whether or not it is illegal, so long as people are willing to buy and sell sex. It may be better to control and regulate prostitution, not just prohibit it, for the overall benefit of the community’.

With similar acknowledgement from Victorian legislators and the increased voice of prostitution industry supporters, there has been a move towards reducing the damage that the effects of prostitution cause on the community and its workers. Recognition by Victorian legislators that ‘ we cannot fool ourselves that an attempt to completely suppress prostitution through criminal sanctions will ever succeed’ has meant that the focus of regulation is now on reducing the involvement of organised crime within the prostitution industry, granting ‘some level’ of protection for prostitution workers through health policies and protection from violence and protecting children from the effects of prostitution. In regulating prostitution, regulators have attempted to reduce the public nuisance associated with prostitution (street working, ‘curb crawlers’ and residential brothels) and curb the spread of sexually transmitted diseases. So whilst being opposed to prostitution, the legislators maintain that they have attempted to control the peripheral problems that come with prostitution. Professor Marcia Neave who conducted the 1984 Victorian Government Enquiry into Prostitution believes that ‘rather than effecting the extent or existence of prostitution, the law shapes the form in which it is pursued’.

The primary piece of legislation that regulates prostitution in Victoria is currently the Prostitution Control Act 1994. The aims of that act are stated as

Seek to protect children from sexual exploitation and coercion;
Lessen the impact of prostitution-related activities on the community;
Ensure criminals are not involved in the prostitution industry;
Ensure brothels are not located in residential areas or in areas frequented by children;
Ensure no one person has at any one time an interest in more than one brothel licence or permit;
Maximise the protection of prostitutes & clients from health risks;
Maximise the protection of prostitutes from violence and exploitation;
Ensure brothels are accessible to law enforcement officers, health workers and other social service providers; and,
Promote the welfare and occupational health and safety of prostitutes.

Hence whilst, over time, the stated objectives of the regulation of prostitution (and its effects) have changed, it is arguable that the underlying reason for regulating prostitution are still based upon a foundation of moral repugnance and a perception that the community at large requires protection from its evils.

What is prostitution?

Prostitution is defined as ‘the provision by one person to or for another person (whether or not of a different sex) of sexual services in return for payment or reward’. In turn ‘Sexual services’ includes:

‘a) taking part with another person in an act of sexual ...

This is a preview of the whole essay

What is prostitution?

‘a) taking part with another person in an act of sexual penetration; and

(b) masturbating another person; and

(i) two or more persons taking part in an act of sexual penetration;

(ii) a person introducing (to any extent) an object or a part of their body into their own vagina or anus;

(iii) a person masturbating himself or herself or two or more persons masturbating themselves or each other or one or more of them—

in circumstances in which—

(iv) there is any form of direct physical contact between any person viewing the occurrence and any person taking part in the occurrence; or

(v) any person viewing the occurrence is permitted or encouraged to masturbate himself or herself while viewing—

and, for the purposes of this definition, a person may be regarded as being masturbated whether or not the genital part of his or her body is clothed or the masturbation results in orgasm;’

The most common environments where prostitution is procured is in licensed brothels, through escort agencies, unlicensed brothels (which include illegal operations and small owner operated business) and on the street. Under Victorian legislation a brothel is defined as ‘any premises made available for the purpose of prostitution by a person carrying on the business of providing prostitution services at the business premises’. An escort agency is defined as ‘a business of providing, or facilitating the provision of, prostitution services at premises not made available by the agency’.

How is Prostitution regulated in Victoria?

The prostitution industry in Victoria is currently regulated by The Prostitution Control Act 1994 (VIC)(‘the Act’), the Prostitution Control Regulations 1995(VIC)(‘the Regulations’) and the Health (Infectious Diseases) Regulations 2001(VIC)(‘the health regulations’).

The Act introduced a system of licensing and registration, whereby owners of prostitution businesses (prostitution service providers) must be licensed with the Business Licensing Authority of Victoria (BLA) (run through Consumer Affairs Victoria). In addition, to being licensed a prostitution business must be personally supervised whether by the licensee or an approved manager at all times when the business is open.

Exemptions from holding a licence.

The Act provides for exemptions from having to hold a licence for ‘small owner-operated businesses’ consisting of one or two prostitution service providers. However, those seeking the exemption must have a valid planning permit that allows them to operate their business from their premises which is issued by their local council and register as an exempt brothel/escort agency with the BLA. The applicant must provide their personal details, including names of those performing the services, any business or company details, the address where the services will be provided, the landlord’s consent for the premises to be used as a brothel and the planning permit number and the name of the local council granting that permit. There is no cost for registration and the details provided are placed on a register that is only available for inspection by the prostitution service provider.

The Director of Consumer Affairs Victoria
Members or staff of the Business Licensing Authority
Authorised members of the police force
Authorised officers of the local council.

The applicant is then given a Prostitution Control Act exemption number (P.C.A) which must be cited in all advertisements made by the registered

Obtaining a licence

To obtain a licence from the BLA to be a prostitution service provider, an applicant must:

Be a natural person
Be at least 18 years of age
Consent to having their fingerprints takenand passed on to the Chief Commissioner of Police
Pay a $200 licence application fee in addition to an annual fee of $400 plus $167 for each room (with the first room attracting no charge) .
Be a suitable person to trade as a prostitution service provider
Not have been found guilty or convicted of an indictable offence in the last five years which, in the Authority’s opinion, renders them ineligible
Not have had a prostitution provider’s licence cancelled in the last five years
Not have an individual or body corporate associate convicted or found guilty of an indictable offence in the last five years which, in the Authority’s opinion, renders them ineligible
Not be an insolvent under administration
Not be a represented person within the meaning of the Guardianship and Administration Act 1986.

In completing the application for a Prostitution Service Providers Licence, an applicant must provide all their personal, business, company, employee and associates’ details and must consent to a police check being performed on them and all of their associates. Also required are copies of the current local council planning permits and certificates of incorporation of all private companies in which the applicant is a shareholder, director or secretary. Involved in the application form is the requirement to complete a Declaration of Personal Finances form. This declaration requires the applicant to submit all their personal, business and company financial details including (amongst other things):

The applicants current assets and liabilities
A current balance sheet and trading statement of each private company in which the applicant is currently a director, secretary or shareholder.
Copies of :

certificates of title
bank account statements
mortgage account statements
overdraft statements
shareholding statements
current wage slips

Copies of Contracts of purchase, lease or rent of premises both business and personal
Evidence of approval of credit facilities the applicant is planning to utilise in operating the business
An explanation of how they plan to finance the business and manage the business financially.

All of the information given by the applicant to BLA must be forwarded to the Director of Consumer Affairs and the Victoria Police, who may make any inquiries they consider appropriate and then report their findings to the BLA.

In determining whether the applicant is a suitable person to trade as a prostitution service provider the BLA must consider

Whether the applicant is of good repute, having regard to character, honesty and integrity
Whether the applicant has, or is or will be able to obtain, financial resources that are adequate to ensure the financial viability of the business
Whether the applicant has sufficient business ability to establish and maintain a successful business
Whether the applicant will have in place arrangements to ensure the safety of persons working in the business that are adequate and comply with the prescribed requirements or the conditions or restrictions that might be set out in a licence
Whether the proposed business structure is sufficiently transparent to enable all associates of the applicant to be readily identified for the purposes of section 37 (circumstances where a board must refuse licence application – associate)
Any other matters that are prescribed

The act specifically states that a person cannot be classed as unsuitable because that person has worked as a prostitute previously. An applicant has to have appropriate knowledge of the relevant laws and the obligations and requirements under these laws. The applicant has to ‘prepare themselves to attend an interview, where they will be tested on the relevant legislation’.

The regulations clarify the arrangements a licensee must have in place to ensure the safety of persons working in the business in section 19 Entitled “Safety Requirements”, the section prescribes :

If a prostitute decides not to provide or stop providing services because they believe a situation is potentially violent or unsafe the license or approved manager must not dispute the prostitutes decision or punish the prostitute or allow anyone else to dispute or punish the prostitute.
A licensee or approved manager must not allow a receptionist to misrepresent the qualities of a prostitute or negotiate the services to be provided by a prostitute.
The licensee or approved manager must ensure that

All rooms used for prostitution contain a concealed alarm button (or equivalent device) that is in working order
All rooms used for prostitution services have sufficient lighting to enable prostitutes for signs of sexually transmitted disease
A sign is displayed in the reception area of the business stating ‘Only safe sexual practices are engaged on these premises’ and containing an illustration of an adult male wearing a condom.

The licensee or approved manager must ensure that no person who works on the premises as a prostitute is required to clean or disinfect any bath toilet, shower or spa unless:

Those facilities have been used by a person to whom sexual services have just been provided by that prostitute
The prostitute is employed or contracted as a cleaner
Adequate protective clothing is provided

Public notice

The Act requires that, whilst being considered, the application must be made available to the public for inspection free of charge at the offices of the BLA. Only the section which details the personal details of the applicant, owners and business partners (of the brothel in question) is made available to the public. The parts detailing associates and financial particulars are not made available. Notice of the application is also required to be given to the relevant local council and a notice is placed in a Victorian Newspaper notifying of the application.

Approved Managers

In applying for registration as an approved brothel manager, an applicant must provide similar details to that as with an application for a licence to be a prostitution service provider. Personal details and details regarding associates are required, however an applicant does not have to provide a financial declaration. An applicant must consent to having their fingerprints taken and forwarded to the Chief Commissioner of Victoria Police. The applicant must also complete and submit a written assessment of their knowledge of the legislation relevant to the operation of a brothel. The Fee for application is $125 and when approved, the name, date of approval, approval number and date of expiry (after 3 years) will appear on the licence and approvals register maintained by the BLA which is available to the public for a fee.

An applicant for either an approved manager or prostitution service providers licence has the right to appeal to the Occupation and Business Regulation List of the Victorian Civil and Administrative Tribunal for review of the BLA’s decision.

Planning Controls on Brothels

As stated above, a pre requisite to obtaining a prostitution service providers licence is the licence applicant must have obtained a planning permit from the local council in which they intend to operate a permit which allows the applicant to operate a brothel on their premises. The Act outlines the matters to be considered by the local council in addition to those considerations under section 60 of the Planning and Environment Act 1987 (Vic). Before granting a permit for the use of land for the purposes of operating a brothel, the local council must consider:

Any other brothel in the neighbourhood
The effect on the operation of a brothel on children in the neighbourhood
Whether the land is within 200 metres of a place of worship, hospital, school, kindergarten, children’s services centre or of any other facility or place regularly frequented by children for recreational or cultural activities and, if so, the effect on the community of a brothel being located within that distance of that facility or place;
Other land use within the neighbourhood involving similar hours of operation and creating similar amounts of noise or traffic (including pedestrian traffic)
The amenity of the neighbourhood;
Must not have more than 6 rooms used for prostitution (unless special circumstances arise.
The provision of off street parking;
Landscaping of the site
Access to the site;
The proposed size of the brothel and the number of people that it is proposed will be working in it;
The proposed method and hours of operation of the brothel.

The Act stipulates that a person is not to have an interest in more than one brothel licence or permit at one time. This includes the person and their associates.

The applicant for a planning permit must therefore submit their application under the above terms and, if refused, has the right to appeal against the decision to the Victorian Civil and Administrative Tribunal.

Health related obligations for brothel owners

The owners of brothels have further ongoing obligations under the Health (Infectious Diseases) Regulations 2001 (which replaced the Health (Brothels) Regulations 1990 in 2001). The regulations prescribe that a brothel owner must provide and promote the use of suitable condoms and lubricant for use by clients and prostitutes free of charge and must take reasonable steps to ensure that condoms are used in any act that involves vaginal, oral or anal penetration by a penis. The regulations also require that an owner must not require a prostitution to provide sexual services if the prostitute believes the client has an infectious disease or if the client has refused to wear a condom. Information about the transmission of sexually transmitted disease must be supplied by the owner to both clients and prostitutes. Further, the owner must ensure that clean linen and towels are provided and that the client and prostitute are provided with baths or showers with continuous hot and cold water which are to be cleaned and disinfected after every use.

Under the Prostitution Control Act 1994, the brothel owner or manager must not allow a prostitute to work in their brothel when they know that the prostitute has an infectious disease. However, it is a defence to the section if the brothel owner believed on reasonable grounds that the worker was getting regular blood tests on a quarterly basis for HIV and each other sexually transmitted diseases for which blood tests are appropriate and that the owner believed that the prostitute was not infected with a sexually transmitted disease. Likewise, a prostitute must not work whilst infected and can use, as a defence, the undergoing of blood tests as a defence.

Who is the consumer and are they protected?

As with most industries, the protection of stakeholders is one of the prime motivations behind the perceived need for regulation of the prostitution industry. It could be argued that without regulation conduct may occur which is undesirable and harmful to some or all of the stakeholders. In most commercial or service industries, the protection, by regulating the industry, of the consumer facilitates the protection of the community at large. Indeed, ‘‘consumer’ is a term which has many different definitions’. Often, a reference to ‘consumers’ is taken to mean ‘a person who acquires goods and services for personal or household use’ and the regulation of the industry seeks to protect the community through, amongst other things, ‘giving the consumers some equality of power, some redress against those forces which ply them with goods and services which they have been convinced to buy on the basis of a choice which may be informed but informed on an artificial basis’.

The methods used to regulate the Prostitution Industry have a different focus. There is no doubt that the desire to control the industry is primarily for the protection of the community. In contrast however, to the regulation of other service industries, the regulation of the prostitution industry does not display any forthright proclamation of upholding the rights or affording protection to the clients of prostitution providers.

Investigation of the literature and website of the Business Licensing Authority (Victoria) (BLA) found no indication of an avenue of redress for aggrieved clients of prostitution service providers. The Prostitution Service Providers page on the BLA website appeared to be aimed not at the clients but predominantly at licensees and in one case sex workers. A complaint could be made to the BLA, however, this is not promoted or facilitated on the website or in the Act.

The Act or the regulations does not contain any provision for redress by an aggrieved client. In reviewing websites of 10 Escort Agencies/Brothels it was interesting to note that only one contained information for a client on what do if they were not happy with the service they received:

However, if you feel you have been hard-done-by and want to take it further, a lot will depend upon where you are (in the world). In many countries, the act of paying for sex is illegal, so you would hardly want to complain to the authorities. So unless you have used an Agency who wants to listen – write it off to experience. Here in Melbourne it’s a very different story. As long as you are using an Escort or Agency which is licensed (their ad must show a licence number beginning with the letters P.C.A), you should lodge your concerns with the Victorian Government Licensing Authority at the Office of Fair Trading, or the Victorian Police. These authorities will take your complaint seriously and without prejudice.
At the end of the day remember, “Prevention Is Better Than Cure” and “Caveat Emptor”!!

Another provider contained a link to the Sex Workers Outreach Program (SWOP) which provides general industry information for workers, clients and owners/managers but from a NSW perspective.

So who are the ‘consumers’ being protected? In introducing the Prostitution Control Bill to parliament for its second reading, the then Attorney General Mrs Wade suggested that:

With a tough set of controls, we can raise a barrier against organised crime. We can protect our communities against the uncontrolled spread of brothels. We can afford some level of protection for those who have resorted to prostitution. Most importantly, we can guard our children from the effects of prostitution.’

The aims of the Prostitution Control Act 1994, when introduced, were targeted towards greater community protection, with children being the part of the community most in need of that protection. There is reference throughout the Act to the protection of children from being involved in the provision of prostitution and also ensuring that acts of solicitation or the location of brothels is not in areas were children or the public frequent.

It was also recognised in parliament that the prostitution industry, by its nature, attracted a criminal element and the Act sought to control this by ensuring that a brothel licence applicant list the details of their associates. The reinforcement of street solicitation as illegal ensured that the disturbance created by prostitutes and their clients (through, amongst other things, ‘street crawling’) evinces yet another method to ensure the protection of the community from ‘undesirable’ activities.

Hence, the parliamentary speeches and the Act itself help us to define the who the legislature where intending to protect and identifies that unlike the regulation of other service industries, the Act, in its original (and its counterpart instruments) was not protecting the usual notion of consumer (who pays for goods and services) but the community first and foremost. It is arguable that the Act, in its original form, did not protect the client at all.

Does the regulatory structure work in achieving its broader aims?

The regulatory structure put in place by the Prostitution Control Act has implemented a planning and licensing regime that has created a barrier to entry into the legalised prostitution industry. This has created a number of problems for the effective regulation of the industry in light of the regulators objectives. Whilst the predominant objective of the Act and with prostitution regulation over time can be viewed as the protection of the community from the abhorrence of prostitution, it is interesting to note that over twenty years ago in a survey conducted by McNair Anderson Associates in 1982, 59 % of Victorians thought that prostitution should be legal, whilst in a survey conducted in 1985, 72% of Melbourne citizens agreed that prostitution in premises in certain areas should be legal. Current attitudes of the majority are uncharted, however those figures serve to undermine the main policy reasons for regulating prostitution in the manner that Victorian regulators have. In any event, if the protection of the community is one of the main aims of regulation in this industry then the methods used have caused failure in achieving that aim.

The introduction of barriers to entry into the market through licensing and planning has increased costs for both brothel owners who wish to operate legally. The relative lack of enforcement of the Act has meant that those wishing to avoid the increased costs and requirements simply operate illegally and place competitive pressure on those legal players in the market. The introduction of legalised prostitution in Victoria has seen the illegal prostitution industry balloon, with some commentators suggesting that the current figures for unlicensed brothels are in the region of 100 while others suggest it is more in the region of 400.This is in comparison to the 170 Prostitution Service Providers in existence as at 30 June 2002. In addition some academics believe that the legalisation of the industry has meant that the forcing of prostitutes to work in a legal brothel, where the Brothel owner takes between 50-60% of the fees charged, has led many prostitutes to work on their own (either on the street or from their home) illegally so as to ensure more profitability for the hours they work. This is indicated by the burgeoning illegal street prostitution industry, in response to which the citizens of St Kilda in Melbourne took to the streets in protest. The mushrooming of the illegal industry is evidence that those the Act intended to regulate have reacted unfavourably to the requirement to comply. This has had the effect of marginalizing those prostitutes who choose (or feel they have no option ) to work outside of the regulatory structure. This increases the risk to prostitutes of susceptibility to violence and unsafe sexual practices and impairs the regimes ability to ‘maximise the protection of prostitutes and clients from health risks, violence and exploitation’.

In September 2003, the Assistant Commissioner (Crime) of the Victoria Police, Simon Overland, was quoted as saying that since the Prostitution Control Act was introduced in 1994, there had been no criminal prosecutions of the operators of illegal brothels. In addition the problem was not helped with the closing down of the Victorian police vice squad in 1999. The president of the Victorian Brothel Association has stated that ‘in the realm of the sex industry, enforcement is a joke’ and that ‘[t]here appears to be no effective policing of the Act in Victoria, and there is little or no pressure on the police to change…’ . All this is in spite of legislative changes in 1999 to the Act giving police and government inspectors greater entry search and seizure powers. This failure of enforcement to adequately control those outside of the regulatory regime only serves to undermine the method of regulation used, and indicates evidence of the existence of motivation (or indeed information) failure, as referred to by Black above. The regime, without enforcement of those operating outside the regime, appears to have settled on regulating only those that subject themselves to the regime, indeed, they are in danger of becoming the regulators of the just the industry ‘rather than of the public interest’. With the increased costs and obligations involved in compliance, legal brothel owners are concerned about the lack of natural justice in effectively allowing illegal brothel owners to operate.

Another aspect of the licensing and planning regime which has challenged the effectiveness of the regulatory regime is the role of local councils in deciding on the future of a prospective brothel. Local councils, it is argued, have placed themselves in the position where they are making moral judgements on whether a permit should be granted rather than following planning guidelines. Should local councils be empowered to make decisions about the nature of occupants? This practice places the regime at risk of inconsistency in its application and inherent prejudice, depending on the composition of the council of the day. Further, appeals from this process are proceeding to VCAT where the reluctance to depart from decisions exercised from discretion is hampering any procedural consistency. On the other side of the spectrum, councils have struggled to prosecute operators of illegal brothels, with illegal operators moving to other premises after being shut down under planning laws.

The regulatory regime in Victoria may well be effective at controlling those who have submitted themselves to the requirements of the Act. However, the effect of this regulation appears to be that the creation of a larger, illegal, industry has rendered those positive aspects of the Act (and its complementary regulations) inoperative. The inclusion of safe sex practices as mandatory and child protection mechanisms has no effect on an illegal industry that is unregulated and un-enforced.

Self Regulation?

Despite the dichotomy of views on the regulation of prostitution, most viewpoints acknowledge that aspects of prostitution require regulation, 'the point of disagreement is the type and extent of these restraints'. The current command and control regulation of prostitution in Victoria has inherent failures that have not achieved the objectives as set by the regulators. A move away from the current method, by incorporating elements of self regulation, may serve to strike a more effective balance of regulation and move towards solving the problems associated with prostitution. Black argues that in policy makers, in solving a problem by regulation, must move away from an understanding of regulation which assumes that governments have a monopoly on power. In moving to a 'de-centred' approach to regulation policy makers ' should not think in terms of using just one regulatory instrument to address a problem, but of using a range of instruments in a combination which will be multifaceted and hope to minimize, or self correct, unintended consequences: instrument mix is the new buzz phrase'. When a regulatory failure in respect of an industry has been identified, according to the Australian Guide to Regulation 'self regulation should be one of the first options considered…'

Actors from within the prostitution industry in Victoria have indicated for some time that 'that government cannot know as much about the industry as industry does about itself'. Sheranne Dobinson, from the Prostitutes Collective of Victoria, suggested that sex workers 'are best able to determine the way industry is conducted – a right not denied to other occupations but, sadly, with a long history of denial in prostitution'. The Brothel owners themselves have indicated that they believed 'legality would bring respectability' and therefore treatment by regulators that included consultation and goal setting like any other commercial industry.

The treatment of the prostitution industry in a different way to other commercial or service industries has resulted in minimal consultation and, where consultation is sought, little involvement in the regulation process. Brothel owners maintain that, in the whole, they are ordinary business people who operate their businesses in consideration of their clients and workers and their health and safety. For them to operate in any other fashion can lead to business failure. Further, workers in the majority are said to be conscious of safeguarding their health with respect to violence and sexually transmitted disease. Those in the industry are concerned (and annoyed) at the continual stereotyping of owners and workers and believe that the attitudes connected with these stereotypes have led to governments and regulators failing to consider their involvement in the regulation of the industry as a viable option.

Academics suggest that 'perceptions of failure by both consumers and industry will lead them to bypass government altogether to forge consensus on self regulation…'. The unfortunate reality for the prostitution industry is that the issues and perceived problems are imbued with moral and cultural preconceptions and prejudices, which prove to be obstacles to any form of self regulation. It appears that only when the Victorian legislators recognise the failures of the regulatory regime and take head of accepted regulatory policy methods promoted in Australia will they acknowledge the need to allow not only participation but a degree of self regulation.

Conclusion

With recognition, by our own federal government, that there is a move towards assessing public policy regulation through the use of regulatory alternatives as part of a spectrum of regulation, the Victorian government needs to reformulate its approach to the regulation of the prostitution industry in Victoria. The use of direct government interventionalist, command and control regulatory techniques has failed to meet the aims of the regulatory regime. Traditional consumer protection elements are non existent, workers within the industry have been marginalised and the illegal brothel and prostitution industry has grown out of control and arguably unchecked. Enforcement mechanisms, whilst available, have proven to be ineffective to control the growth of the illegal sector of the industry. Those who have submitted to the regime have had to bear increased compliance costs and obligations, which, while improving the standards within the legal industry, has resulted in legal operators being dissatisfied with, the lack of enforcement and hence, the regulatory system.

In addition, the occupational safeguards (both in terms of health and employment) have not been employed to the level of other industries, in practice at least. It is only in recent times that the protection of the workers and their clients has crept into the regulatory regime. The protection of the community from the undesirable elements of the industry and those that it attracts appears to be the main aim.

In applying the methods of regulation appropriate for the prostitution industry, the Victorian legislators have treated the industry differently from other commercial service industries. The historical moral and social attitudes associated with the industry have underpinned this different treatment. With governments being 'opposed to prostitution in all its forms', it is not surprise that the only method available from a government perspective is the absolute control by direct state intervention. The regulatory framework is riddle with indications that the desired outcomes reflect the control of a social problem, not an industry that provides a service for payment or anyway in between.

The acknowledgement by the regulators that prostitution can never be eradicated by government control is a move forward from historical approaches to 'the problem'. However, regulators need to move on even further to accept that the prostitution industry is, in many respects, akin to other commercial industries where services are provided. As such, industry consultation, involvement and accountability should form part of the regulatory mix employed to control the undesirable effects of the prostitution industry. A method that employs a protective framework for the community, brothel owners, workers and clients can be achieved by incorporating the needs of all these actors.

Bibliography

Black, J. Critical Reflections on Regulation (2002) 27 Australian Journal of Legal Philosophy 1 p 11

Office of Regulation Review, A Guide to Regulation (second edition), 1998 pA1

Black, above n1, p11

Ibid

Black, above n1, p26

Black, above n1, p11

Ibid

Black, above n1, p2.

Baldwin, R and Cave, M, Understanding Regulation, Oxford University Press, Oxford, 1999 Pg1

Ibid

Commonwealth Interdepartmental Committee on Quasi-regulation, Parliament of Australia, Grey Letter Law, December 1997, p 41.

Black, above n1, p3

Commonwealth Interdepartmental Committee on Quasi-regulation, above n12, p41

Black , above n13.

namely explicit government regulation, co-regulation, quasi regulation and self regulation as per above n2.

Perkins R, Working Girls - Prostitutes, their Life and Social Control, Australian Institute of Criminology, Canberra, 1991, p48.

Ibid, pg49

Take for example, Parent-Duchatelet A.J.B. De la prostitution dans la ville de Paris: considérée sous le rapport de l'hygiène publique de la morale et de l'adminstration ouvrage appuyé de documents statistiques, J.B. Baillière, Paris, 1837.

Sheldon Garon. Molding Japanese minds : the state in everyday life, Princeton University Press, Chichester USA 1997.p90

Ibid p100

Ibid p90

Ibid p100

Pickles, C. 'Legal Perspectives in Clarifying the Issues of the Sex industry' in Gerull S and Halstead B (eds), Conference Proceedings No 14 Sex Industry and Public Policy, Australian Institute of Criminology, Canberra, 1992.p23

Neave , M. Inquiry into Prostitution - Options paper- Summary, Inquiry into Prostitution, Melbourne, November 1984.p11

Ibid

Tony Fitzgerald QC (Fitzgerald Report) quoted in Griffith, C. Prostitution policy is fraught with pitfalls, The Herald-Sun, Melbourne, 1 November 1992

Victoria, Parliamentary Debates, Legislative Assembly, 21 October 1994, 1453 (Wade), 16 November 1994 1852-1883 (Cole) 1 June 1999 960 (Nardella)

for example the Prostitutes Collective of Victoria, Roberta Perkins and Sheryl Dobinson.

Victoria above n28 1 October 1994, 1453 (Wade)

Ibid

Zajdow G, 'Sex Work and Regulation : Holding on to an Image - a Socialogical Reflection', in Gerull S and Halstead B (eds), Conference Proceedings No 14 Sex Industry and Public Policy, Australian Institute of Criminology, Canberra, 1992. p 174

The Prostitution Control Act 1994 (Vic) section 4

Ibid s 3

Ibid Section 3 (as amended by No. 44/1999 s. 4(3).)

Ibid

Ibid Section 3(1)

"a person carrying on a business of a kind referred to in the definitions in this section of 'brothel' and escort agency' Section 4 Prostitution Control Act 1994

Section 22

section 49

section 23

section 24

Regulation 11 Prostitution Control Regulations 1995 (Vic)

section 33

section 33(3)

section 36(1A)

section33(d)(i)

includes a spouse or domestic partner, business partner, or a person in which the person has enetered into a business relationship or lease with. (s37(2))

www.bla.vic.gov.au and section 37

Ibid

Section 38

Section 38 (2)

above n60

Section 34

Section 35

sections 50 and 51

s50 (2A) and (5A)

$5.00

the ‘responsible authority' as defined in section 3

some brothels that were in operation prior to the introduction of the act were allowed to transition through the licensing regime with the amount of rooms that they had in operation, hence, the daily planet for example has 18 rooms in operation

section 73 of the act

that is they must not discourage s28(2) Health (Infectious Diseases) Regulations 2001 (Vic)

Ibid s 27

Ibid s28

Ibid s29

Ibid s 32

Ibid s33

Section 19(1) Prostitution Control Act 1994

Ibid Section 19(2)

Ibid Section 20(1)

Ibid Section 20(2)

Goldring,J. Maher,L. McKeough,J. Pearson,G. Consumer Protection Law, 5th Edition, The Federation Press, Sydney 1998. p129

Ibid

Ibid p130

Victoria, above n3 1 October 1994, 1453 (Wade)

eg Sections 5, 6, 7 ,11, 11A Prostitution Control Act 1994.

As defined by section4 of the Prostitution Control Act 1994.

Section 12 and 13 of the Act

whereby those attempting to solicit prostitutes from the street drive slowly past the worker.

Perkins, above n 17, p112

Richardson P, 'The Victorian Brothel Owners' Perspective', in Gerull S and Halstead B (eds), Conference Proceedings No 14 Sex Industry and Public Policy, Australian Institute of Criminology, Canberra, 1992. p135

Murphy, P, Talks set to tackle boom in brothels, The Age, September 4, 2003.

Jeffreys, S. The Legalisation of Prostitution: A failed social experiment,Speech delivered at Commission on the Status of Women, United Nations, New York, 5 March 2003, p 2

Consumer Affairs Victoria, Report to the Minister for Consumer Affairs For the Year Ended 30 June 2002, Victorian Government Printer, 2002, p23.

Sullivan, M, and Jeffreys, S. Legalising Prostitution is Not the Answer: The Example of Victoria, http://mc2.vicnet.net.au/home/catwaust, 2003. p4

Ibid p4 and Dobinson, S, 'Victorian Situation with Legalisation', in Gerull S and Halstead B(eds), Conference Proceedings No 14 Sex Industry and Public Policy, Australian Institute of Criminology, Canberra, 1992. p118

Dow, S, Walking the Mean Streets of St Kilda, The Age, 20 March 1998 and Discussions with Julie Futol, Project Worker with RhED Resourcing Health and Education in the sex industry successor to the Prostitutes Collective of Victoria

Black, above n1, p108

Hatty, S 'The Desired Object: Prostitution in Canada, United States and Australia' in Gerull S and Halstead B (eds), Conference Proceedings No 14 Sex Industry and Public Policy, Australian Institute of Criminology, Canberra, 1992, p 80

Jeffreys, above n 85 p3

Section 4 of the Prostitution Control Act 1994 (Vic)

Murphy, above n84

Richardson, above n 83, p136

Division 8 A of the Act Prostitution Control Act 1994 (Vic)

Baldwin and Cave, above n9, p36.

Murphy, above n84.

Dobinson, S, 'Victorian Situation with Legalisation', in Gerull S and Halstead B(eds), Conference Proceedings No 14 Sex Industry and Public Policy, Australian Institute of Criminology, Canberra, 1992, p118.

Murphy, above n84.

Black, J. Decentring Regulation: Understanding the role of regulation and self regulation in a 'Post regulatory' World, (2001) 54 Current Legal Problems p 112

Ibid p113

Office of Regulation Review, A Guide to Regulation (second edition), 1998 B3

Black, above n103, p 107.

Dobinson, above n8, pg117.

Richardson, above n83, page 135 &137

Discussions with Julie Futol as above n89 and with a brothel owner who wished to remain anonymous.

Ibid

Ibid and Wade A, 'From the Inside', in Gerull S and Halstead B (eds), Conference Proceedings No 14 Sex Industry and Public Policy, Australian Institute of Criminology, Canberra, 1992. p144

Ibid

Scott, C and Black, J, Cranston's Consumer and the Law, Butterworths, London 2000. p522.

Eg The Guide to Regulation and Grey Letter Law referred to above at notes 2 and 12.

Office of Regulation Review, A Guide to Regulation (second edition), 1998, pE.2.

Victoria, above n28.

A critical evaluation of the regulation of legal prostitution in Victoria.

Introduction

What is regulation?

Why Regulate Prostitution?

What is prostitution?

This is a preview of the whole essay

What is prostitution?

How is Prostitution regulated in Victoria?

Exemptions from holding a licence.

Obtaining a licence

Public notice

Approved Managers

Planning Controls on Brothels

Health related obligations for brothel owners

Who is the consumer and are they protected?

Does the regulatory structure work in achieving its broader aims?

Self Regulation?

Bibliography

Document Details

Related Essays

Critically examine the development of on-line pornographic material and its...

In country X a fascist dictatorship, oppressive legal measures are used to...

Critically discuss John Stuart Mill's liberty principle with reference to t...

This essay will look at what is meant by the Common Sense of Law as written...