Council officers are spending a disproportionate amount of time and money busting dodgy massage parlours and responding to complaints about sex workers operating out of motels, Airbnb properties and tourist accommodation, NSW councils have told a parliamentary inquiry.

A current NSW parliamentary inquiry is examining the regulation of brothels and the demarcation of responsibility at local and state levels, alongside possible reform options; including a licencing or registration system for legal brothels, similar to that already in place in Victoria and Queensland.

Councils are adamant that the state government keeps its side of the bargain on regulating the sex work industry, namely monitoring sex worker health and investigating links between brothels and organised crime or bikie gang activity while they get on with the business of ensuring premises comply with conditions of development consent.

Many councils that made submissions to then inquiry backed the creation of a state-wide registration, licensing and inspection system for brothels; some wanted a new agency established to carry out these functions; while others thought individual sex workers should also be included in any registration system.

Massage parlours
The biggest headache for metropolitan councils is dealing with massage parlours providing illegal sex services. Many councils complained that the burden of proof required to shut down a massage parlour operating illegally was too high and that cessation and closure orders were costly and time consuming to obtain.

As well, they noted that massage parlours could be established in existing premises as an exempt or complying development, without councils knowing their real business.

Hornsby Council lost a bitter, year-long, legal battle to shut down a massage parlour it said was operating as an illegal brothel at a March 2015 Land and Environment Court (LEC) hearing.  This judgement has reinforced to councils that trying to close down these illegal establishments may not be worth the hassle.

During its investigation, Hornsby Council paid a private investigator to visit a massage parlour, which was near a primary tutorial centre and a high school, and have sex with a prostitute but the judge was not satisfied there was enough proof the premises was being used as a brothel because the investigator only had sex with one prostitute.

In NSW, different acts contain different definitions of a brothel: one says that one prostitute can constitute a brothel, another act defines a brothel as being more than one prostitute selling sex onsite. The Hornsby Council ruling meant NSW councils would need to fund multiple visits to parlours before they could take them to court.

Hornsby Council’s submission to the parliamentary inquiry details the multiple steps council officers must take before criminal proceedings can even begin including:

• Providing evidence sexual services are being offered as a reward
• Showing evidence more than one prostitute is working at the premises at any one time
• Proving sexual services are being offered on an ongoing basis, not as a one-off by a rogue worker
• Statements from complainants who were offered sex at the premises
• Information showing who is in charge of the business (records showing who owns or leases the property are not sufficient)
• Statements from the business owner and/or staff confirming who pays the employees, who organises the services offered, who is regularly present and who signs off on newspaper ads
• Circumstantial evidence is also collected, e.g. using online adult forums or the adult section of newspapers.

No wonder Hornsby Council spent more than $100,000 to try and shut down a massage parlour and failed.

“Obtaining this evidence to the required legal standard has significant resource and financial implications for local government,” the council’s submission said.

Once the legal process is underway councils face other problems. If they do manage to obtain a Brothel Closure Order council officers must revisit the premises to prove it has not been complied with before seeking a Utilities Order, which enables it to shut off gas, water and electricity.

“In council’s experience the proprietor of the business simply closes up shop and moves to a different premises resulting in the problem being moved to new suburb or even to a different local government area,” Hornsby Council said.

“The investigation and enforcement of unlawful brothels is an extremely time consuming and highly resource dependent process for councils and requires strong regulation, similar to the state government-enforced licensing requirements for alcohol and tobacco.”

The council backs setting up a new state regulatory authority and resolving the definition of a brothel to mirror that in the Restricted Premises Act 1943, i.e. one prostitute constitutes a brothel.

Willoughby City Council on Sydney’s north shore has served 41 Brothel Closure Orders on 34 separate premises since May 2009 and fought five LEC cases.
The council estimated that each LEC case took around six months to investigate and cost $20,000 in legal expenses.

“The number of instances of suspected illegal brothel activity and the process of investigation is a strain on council’s resources and also one in which council has not wished to expose its staff to directly [due to] increased risk in terms of work, health and safety or corruption,” the council’s submission said.

Willoughby Council backed new rules which meant premises advertising sex had to include a development consent number.

The council also said that the system could be improved by making it easier for councils to recoup some of the costs associated with shutting down illegal brothels; applying Brothel Closure Orders to new occupiers too and ensuring massage premises did not come under exempt or complying developments.

Holroyd City Council in Sydney backs a licensing scheme and said council officers should be able to enter brothels without notice, even if they don’t have a search warrant, with CCTV mandated at the door of licensed sex premises.

The council said any brothel review should include cruise clubs where on-premises sex occurred, BD&SM parlours, massage premises and adult book stores with private viewing booths.

Sex workers operating out of motels, Airbnb and tourist accommodation

Ballina Shire Council, on the northern NSW coast, said it had received a growing number of complaints about ‘fly in fly out’ (FIFO) sex workers working up and down the Pacific Coast. These complaints came mostly from legal brothels, rather than the general public.

Such complaints were difficult to investigate, said the council, since sex workers often only stayed a few days, advertisements for their services provided vague locations and it was difficult to use current legislation to shut down illegal sex work since sex workers moved on so quickly.

Ballina Shire’s submission said: “Some of these workers operate from the approved brothels in Ballina and Alstonville to which the council does not have any objection, however, there has been an increase in complaints alleging the use of motel rooms and now tourist and rental accommodation on short-term basis for the provision of sex services.”

The councils said one particular Ballina Shire motel attracted around 90 per cent of all the complaints about itinerant sex workers from legal brothels and although the owners reacted quickly and were proactive the unauthorised activity continued.

“The other area of concern for Council is the relative ease for an itinerant or FIFO sex worker to “set up” operations within any local government area in a motel or similar as opposed to the impact on council resources in investigating and actioning any complaint made for that activity,” said the submission.

“There is very little outlay for this unauthorised business to commence trading. Conversely, council is required to undertake detailed investigations and arrange for two officers to undertake any site inspection prior to any action being able to be undertaken.

“Council is also required to prepare and collate all evidence to enable even a penalty infringement notice to be issued. This is at significant cost to the local community with little likelihood that the cost of the investigation would be able to be recouped.”

The council told the inquiry that it backed licensing brothels and sex workers and making them display their license number or development consent number when advertising sex in local papers.

Ballina Shire also wants the state to carry out criminal history checks on brothel proprietors following a number of allegations that brothels are linked to organised crime and bikie gangs.

City of Sydney opposes brothel registration 

City of Sydney Council was the only council that sent in a submission that opposed a registration scheme, saying it would place “additional resource requirements on local government compliance teams” in a sector where its existing legal brothels operated with minimal complaints.” a Registration scheme is also opposed by sex worker group the Scarlett Alliance and the United Nations.

“The introduction of a Brothel Licensing Authority in NSW raises concerns including the increased cost and resources on local councils and businesses, as well as an increase in unauthorised or unlicensed premises, operating without any consent conditions that manage safety, wellbeing and amenity,” said the council’s submission.

The council countered that licensing schemes in Victoria and Queensland had not produced better health and safety outcomes and said that only a minority of premises operated within current licensing schemes.

“Due to the majority of premises not being monitored or regulated, vulnerability to exploitative practices and trafficking can be increased,” said the council’s submission.

In comparison, the council said the NSW sex industry had low STI rates and that the industry hadn’t grown or increased its visibility since becoming decriminalised in 1995.

“Local governments are best placed to assess what is appropriate for their local government areas in terms of the location of a sex industry premises. While some councils restrict brothels to industrial areas, other councils like the City have successfully integrated sex industry premises into commercial and mixed use zones.”

The NSW Parliamentary Inquiry into the Regulation of Brothels held two public hearings this week, and is due to hand down its report in November this year. Twelve NSW councils sent submissions before the August 19 deadline.

Sex work became decriminalised in NSW in 1995. Sex services premises only need council planning approval; sex workers working “in-house” must have development consent from their local council; escorts are unregulated; soliciting is allowed away from various places such as schools, home and hospitals. It is illegal to advertise sexual services.

You can read the NSW Parliamentary Research Service’s August 2015 background paper on brothel regulation here.