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Submission to The Review of Regulation of Brothels in NSW.
Thank you for the opportunity to comment in this review of legislation.
Time constraints and other commitments have meant I have not been able to complete this to my satisfaction, but in order to meet the 12 October I will submit my incomplete submission. I will be completing it over the weekend by making comments on more of the questions and adding more complete references. I intend to submit the final version in Sunday evening. If you wish any clarification or further information I can be contacted by my anonymous email address [user.id][email protected].
I write this submission as a frequent and long term client of the paid sex industry. I have been visiting brothels and other sex service premises for over 20 years - since before any were legal. During this time I have made something in excess of 1,000 visits to approximately 70 brothels (both approved and unapproved) and "massage" parlours. However, due to the stigma and prejudices that are still attached to the industry, I will make this submission under the pseudonym Robert.
While I do not speak from a legal or academic background, I think it is fair to claim that I speak from a position of significant experience of the industry - at least from the perspective of a client. I can also only speak from personal experience and on the basis of information that is already in the public domain. I also do not present this as a comprehensive research document. I simply cannot commit the time required for that. My examples are also largely from the North Shore, simply because I live in that area I have more recent experiences there.
I will first address the objectives of the review. I will then provide some detail in response to the specific questions raised in the Discussion Paper.
Protection of residential amenity:
The discussion paper itself presents the results of a survey (Section 5.1 pages 29 and 30) that shows that against most of the types of impact, less than 10% of people report a negative impact. The exceptions are Antisocial behaviour (13%), "state of the neighbourhood" (10.3%), the ubiquitous Parking and Traffic (12.1%) and noise (12.5%). Interestingly only (8.5%) find a negative impact on Morality.
Superficially, this shows that sex service premises have only a minor impact on residential amenity - but the information presented in the discussion paper does not permit comparison of the relative impact of sex service premises compared to other types of businesses (such as fast food outlets, licensed premises, restaurants and the like). I think these other businesses may well have a much greater impact on residential amenity. There is also no information that would allow comparison with perceived impact on residential amenity in other, more regulated jurisdictions. It is not clear from the nature of the survey results whether the "Antisocial behaviour" or the "noise" is due solely to the presence of the sex service premises Alcohol may also play a part. For my own part, drawing attention to myself as I visit a sex service premises is the last thing I want.
Also the majority of sex service premises, both approved and unapproved seem to be in commercial or shopping precincts or in industrial areas which further reduces their impact on residential amenity. This is certainly the case in the Willoughby LGA which featured in the media earlier this year in relation to the ICAC inquiry into a corrupt building inspector.
Protection of sex workers:
Sex workers, like any other workers should be safe in their work. As the law stands, any sex worker in any establishment (whether approved or not) or a worker on the street can report crimes or other problems without fear of retribution. This might not be the case under a licensing system, where some establishments or workers continue to operate without licenses. In Victoria, for example, the operator of an unlicensed premises faces heavy fines or jail, and the workers face fines. this would certainly create a reluctance to report and incidents. There are a significant number of unlicensed establishments operating in Victoria and in Queensland despite the legislation in those states. The LASH Report from the Kirby Institute states that sex workers have better access to occupational health and safety and outreach services under the decriminalized system in NSW that under the regulated system in Victoria.
Section 4.2 of the discussion paper clearly states:
If any change to legislation removes that "empowerment" for any worker, than it would have failed to meet this objective.
Safeguarding public health:
I think there is sufficient evidence in the LASH report and other reports from the Kirby Institute (and presented in this Discussion Paper) to show that the incidence of STIs in workers (and by extension their clients) is as low as, or lower than the general community. These reports also show that the incidence in NSW is the same or lower than in the much more regulated industry in Victoria.
By way of comparison, the SHANTUSI Report from RHeD in Victoria showed the difficulty in even getting testing done in the unlicensed section of the industry:
The reluctance of this section of the industry to participate can be attributed to the fear of prosecution for operating or working without a license with the consequent fines or the possibility of prison for the operator. This also has some relevance for the safety of workers in terms of their reluctance to report incidents due to the threat of penalties.
In short, the Legislation we have in NSW seems to be working relatively well, but more importantly, I don't see any evidence (so far) that any of the alternative proposals (such as the system of licensing owners, operators and workers in Victoria) have delivered demonstrably better results in terms of the stated objectives in other jurisdictions. In some cases the tighter regulations seem to be producing worse results. This is particularly the case for unlicensed premises. where reporting of incidents of crime or assault can possibly result in charges also being laid against the operators and workers.
Responses to Questions
Do you have any evidence about sex services premises’ impact on residential amenity?
I do not live near a sex service premises, so can only comment based upon anecdotal evidence.
Recently there was considerable media coverage of the number of unapproved establishments in the Willoughby LGA. This was in part related to the ICAC inquiry into the corruption of a Council officer, involving amongst other things the receipt of sexual services at an unapproved brothel. A report presented to the Willoughby City Council General meeting on 18 April 2011 (item 22) stated:
The report went on to identify the actions taken on a number of complaints received over several years. From the small number of complaints received, it certainly does not appear that the broader community in the Willoughby LGA sees the operation of brothels as a significant problem.
As identified by the Prior and Crofts report quoted in the discussion paper, another measure of public concern is the number of submissions Councils receive to Development Applications for brothels. A recent one in Hornsby received eight. Four were from residents several kilometres away. None of these submissions, nor any of the local media coverage identified any problems associated with the two existing Land and Environment Court approved brothels in Hornsby.
When an establishment in Pymble applied to have its 12 month trial period made permanent, seven submissions were received. Two of these (including the resident living next to the entry to the brothel were in favour. That resident was interviewed by the local newspaper:
I refrain from quoting the name of the resident but the name is in the North Shore Times Article.
The seven received about this brothel contrasts with the 800 or so received about the proposed Eruv earlier this year.
Another example is the two approved brothels in Hampden Road Artarmon. One was approved by Council, The other (an almost identical situation) was rejected by the Council (despite the recommendation for approval by the Council's planning department) six months later. The Land and Environment Court overruled Council. There were no documented complaints about either place (they were operating unapproved for some time).
There have, of course, also been some reported cases of negative impact.
In Newland Street Bondi Junction, there were several erotic massage businesses operating in a residential apartment building. This was dubbed by the media "The Tower of Sin"
Another report of residential impact was in the Parramatta/Harris Park area:
Similar, but less severe cases have been reported elsewhere within Sydney.
From these examples, it would seem that the presence of larger "call in any time" type of establishments can an impact on residential amenity. There also seems to be a common thread of intoxication of the clients and noise late at night.
The smaller Home Operated businesses would have a different, much lower impact. Firstly they have one or two workers, so the number of clients is limited. They operate on a "by appointment" basis, so there are no casual callers. They only operate limited hours - sex workers have to sleep as well. The combination of these factors would prevent circumstances such as the Newland Street and Harris Park examples.
For an example of the differences I think have occurred, I will use a relatively recent example of the DA for the establishment of a new brothel 142 George St Hornsby.
DA 1027/2010 was submitted 24/08/2010 accompanied by Statement of Environmental Effects, Brothel Management Plan, Fire Safety Plan and so on – all prepared by a professional town planner.
In the Planning Assessment (PLN68/10). Council planning staff found that the application met all the requirements and guidelines set down in relevant legislation and Land and Environment Court decisions – except for a shortfall in parking (six spaces instead of nine). They recommended approval of the DA, pointing out that:
In the Council Planning meeting on 01/12/2010, the Council rejected the proposal 8 votes to 2. The two that voted in favour of it largely argued that Council would lose if the case went to the Land and Environment Court.
Amongst the reasons for rejection were:
The applicant did go to the Land and Environment Court. Hornsby Council then obtained legal advice, the Land and Environment court made a ruling that the application be approved. (Song v Hornsby Shire Council  NSWLEC 1100). Part of the Court's conclusions were (paragraph 25):
I acknowledge that any change of use requires a DA, but for any other business, such as the Jaycar shop a few doors down the road from it, the approval process would be far less onerous. As an example of a development with considerably more impact, on the next corner down the road is Officeworks. The DA for this 4 story $6,000,000 building (there are other tenants as well) was submitted on 16/12/2005. Approval was given on 07/06/2006.
Another interesting comparison is the DA (DA 1567/2007) for the refurbishment of a building at 373 Pennant Hills Rd Pennant Hills for use as office space. The DA was submitted 22/10/2007, approved 04/01/2008 far more quickly that was the case with the George St Brothel.
By coincidence earlier a DA (DA 829/02) for a brothel here was submitted. This was rejected by Council. A second DA (DA 2511/03) was submitted to Council. This was again rejected by council (PLN 46/04) Amongst the reasons for refusal were:
Items 5, 6 and 7 presuppose that the presence of a Brothel inherently presents a crime risk. The statistics available from the BOCSAR website do not seem to support this contention. The Land and Environment Court upheld the Council's rejection. A significant factor in this rejection was the presence of a Skin and Beauty College in the adjacent building.
The later Application for refurbishment as office space (DA 1567/2007) was approved under delegation. No mention was made of any requirement for disabled access, the Access and Mobility Development Control Plan or the necessity for surveillance or security of the laneway. To this day, the building does not have disabled access.
I do not believe there are, other than moral judgements being passed. In the recent Hornsby example, the Council's own planning department recommended the application for a brothel in George St be approved. At the Council meeting, the reasons some of the Councillors gave for rejecting the application were thinly veiled Moral objections. There were comments like "Do we want Hornsby to become another Kings Cross?". One Councillor went so far as to say "I have my Morals" when moral grounds are (I believe) explicitly excluded from planning considerations relating to brothels.
Later, in the local media, a Council spokesman said "Hornsby Council has never approved a brothel". It would almost seem that they have an ideological objection to brothels, even though no-one identified any problems causes by the operation of the two brothels already existing in Hornsby, and the only reports in the local media (or at least the Hornsby Advocate's website) relating to brothels are the reports about the George St application or an application in Pymble which was approved by the Land and Environment Court.
Some statements attributed to Councillors by the Hornsby Advocate (10 March 2011)
When considering applications for sex services premises, should councils use only evidence-based approaches that rely on verifiable criteria about possible amenity impacts? Why or why not?
Certainly only evidence based approaches should be used. Several Land and Environment Court Judgment have stated this. The use of solely verifiable evidence based criteria will remove and ideological bias and provide a greater deal of consistency in decision making. For example the two applications in Hampden Road Artarmon were, for all practical purposes identical. One was approved, the other rejected - in part due to its proximity to a church (even though not within line of sight of it) and the presence of children in the retail strip. Yet the presence of children was not considered to be reason to reject the first application.