UNDERLYING PROBLEMS

Over the past 30 years, we have seen many changes and experienced the industry as an illegal and much reviled entity where corruption was rife, sexual health of sex workers was constantly in jeopardy; legal, human and labour rights non-existent and corruption was endemic. Over the past 14 years, we have had an unparalleled opportunity through the planning system to remedy this situation. However, in the majority of LGAs it has been a costly and complex exercise for proponents, councils and communities; that has failed to reflect the true intentions of the 1995 reforms which were to reduce corruption potential by limiting the regulation of SSP to a complaint based system of genuine amenity impact and not a witch hunt.

To avoid a shift from police corruption to council corruption, councils were only given limited responsibilities in the regulation of brothels[4]:

Mr MOSS (Canterbury) [11.46]:” I want to emphasise the fact that this legislation is not about legalising brothels but about decriminalising brothels. There is a very big difference between decriminalising and legalising. The purpose of the bill is to ensure that brothels that do not disturb the peace or the local community are no longer subject to police interference. This is being done in order to eliminate corruption, because it is a fact that on occasions in the past the authorities have been extremely selective when determining what is and what is not a brothel. I support the Bill, as I am sure this measure will eliminate corruption”.[5]

The limitation on suitable zoned land has created a multi-tiered system that has had a detrimental impact on the sustainable economic development of SSP. That is, few have been able to get development

consent consistent with the historic location of SSP in mixed use and commercial zones – as was the intent of the 1995 reforms; while others have had no choice but to attempt to locate their businesses in industrial zones. Even then, many have been required to take the matter on appeal to the LEC following refusal at the local government level. Often this refusal occurs against the considered advice of the Council’s own town planners. Councillor determination of development proposals for SSP are rarely considered on their merits and emotion and moral argument is allowed to guide the decision making process.

As a result of limited suitable zoned and available land, coupled with the perceived dangers of locating commercial business in industrial zones and the prohibitive cost of fit-out of former warehouse spaces, many brothels remain outside of the regulatory system.

Additionally, many existing long-term commercial operators and many independent home based sex workers are unable to benefit from the 1995 reforms as depending on their local government area, they find their business prohibited in mixed use, commercial and/or residential zones. Under the Standard LEP, there is no provision for ‘home business (sexual services)’ in residential zones; nor under the majority of current Local Environment Plans.

This of course, creates the ongoing potential for corruption and disputes between those with development consent and those without. A review of current local government planning instruments and recent case law, will clarify the limited and restrictive manner in which local government has provided for SSP development, even to the point of totally excluding the home based sex worker sector of the industry.

Furthermore, uncertainty in the planning system has created investment risks and has imposed additional unnecessary costs on operators and potential operators of SSP. This situation has resulted in otherwise commercially viable proposals teetering on the edge of financial collapse. In some cases, operators and proponents have had to sell a business or property to recoup expenditure required to fight on through the courts or cover expenses already outlaid for a property that is now useless in terms of its intended use.

Others have had to break leases, (with the ensuing costs) and walk away having already spent many thousands of dollars in preparation of the proposal but find they cannot sustain further costs of a LEC appeal.

In order to support and guide local councils to accommodate all scales and types of SSP, and move away from the notion that SSP are appropriate only in industrial zones, the Government should consider making it clearer to Councils that the 1996 Ministerial directive that “unilaterally declared that local councils could now restrict brothels to industrial zones only”[6], has now been superseded by clause 6.6 of the Model local clauses for SI LEPs [20090324] [7].

The problem is not simply about how well or otherwise a Council approaches compliance. It is about how well or otherwise is makes provisions for SSP development and communicates its rights and responsibilities with the industry and the community. For over 14 years, NSW Councils have had the power to restrict numbers on grounds of proximity to other SSP and ‘sensitive land uses’, residential uses,, and for some councils, to prohibit SSP in the majority of zones. The latter leaves many potential operators scrambling to find the very few suitable and available sites within small pockets of industrially zoned land.

The reality is that local government councillors regularly override the recommendations of planning staff, and refuse development applications from SSP even when they have met the principle objectives of the planning controls. Such decisions are mostly overturned in the LEC, at significant cost to proponents and ratepayers.

Essentially the problem is that we have an inequitable planning system that has failed to differentiate between the various scales and types of SSP. These range from small scale 2-3 room premises with 3 sex workers and a manager/receptionist to larger premises of between 6 to 10 rooms with a similar ratio of sex workers and ancillary staff.In addition, it fails to accommodate an estimated 40% of the industry, which is made up of independent sex workers operating mainly from residential areas[8]

RESOURCING COUNCILS AND COMMUNITIES TO ACHIEVE BETTER VOLUNTARY COMPLIANCE OUTCOMES

In the Foreword to the SSPPG Vic Smith, the Chairperson of the Sex Services Premises Planning and Advisory Panel whose task it was to oversee the development of the Guidelines states:

“These guidelines have been prepared by the Sex Services Premises Planning Advisory Panel over a two year period and are the result of extensive research and consultation concerning local council planning approaches towards the sex industry. The guidelines aim to lead councils to best practice in planning for different types and scales of sex services premises. To this end, the guidelines present 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 will deliver improved outcomes for councils, the sex industry and the community.

I commend the guidelines to councils as a comprehensive resource document to assist them in making informed decisions”.

HEALTH AND SAFETY CONSIDERATIONS

 One cannot consider compliance activities under the planning system without addressing Australia’s response to the HIV pandemic and sex worker health and wellbeing. Sex workers individually and through their representative bodies have a long and esteemed history of educating their clients and supporting each other around issues of isolation, health and wellbeing, improving workplace conditions, challenging laws, stigma and discrimination.In terms of sexual health, sex workers continue to demonstrate high levels of sexual health outcomes and in the now over 26 years of HIV in Australia, there has been no recorded case of transmission of HIV between a sex worker and a client or vice versa. Sex workers who attend sexual health clinics have been shown to have consistently lower rates of sexually transmitted infections (STIs) than do female sexual health clinic attendees from the general community.[9]

This dramatic improvement in the sexual health of Australian sex workers since the mid 1980s has occurred through voluntary action, despite the restrictive legislative conditions that impact on the lives and livelihoods of sex workers on a daily basis.Across all states and territories of Australia impediments to safe working conditions occur through a variety of punitive laws. Despite this, sex workers have shown great resilience and skill in maintaining such high levels of safe sex practices and should be applauded not condemned as occurs in most media and other representations of sex workers and their industry.

The NSW model of sex industry decriminalisation is still regarded as a world leader in better practice. However, the potential for increase in HIV (and other STIs) in the sex industry remains due to the high turnover of industry workers and the barriers to market entry including over-restrictive planning controls and their inequitable implementation through overly zealous enforcement and compliance activities. There is a growing body of informed opinion to support the relaxing of zoning and other controls that discourage compliance, restrict competition and impact on the health and wellbeing of sex workers. See, Harcourt, Egger & Donovan: ‘Sex Work and the Law’, Review Sexual Health, 2005, 2, 121-128.

Just like the criminal law prior to the 1995 amendments, current restrictions on location and the ad hoc and politically biased implementation of planning instruments is creating a barrier to SSP development opportunities. This situation inadvertently constrains sustainable economic development and fair competition within the sex industry and business generally. Additionally, it has a detrimental impact on peer based health promotion activities.

POINTS TO ADDRESS WHEN CONSIDERING COMPLIANCE REGIMES

• Review successful models of compliance tested over time, rather than failed approaches or new and overly authoritative and punitive approaches that are likely to increase non-compliance. A best practice approach encourages an ongoing dialogue with the sex industry and fair and equitable planning controls rather than over-restrictive zoning provisions used in tandem with over-zealous compliance/enforcement regimes.
• Treat the sex industry like any other land use and treat a complaint like any other complaint for any other use of land – no different from a say a bakery operating without consent or in contravention of consent.
• Communication is key to providing guidance for complying with planning controls
• Education and information should always precede enforcement
• As a last resort only is there a need to use extra powers (given under the Prostitution Amendment Bill 2007 – utilities orders etc.). This action should only be used if a justified impact is occurring.
• The proposed Council Compliance Flowchart increases the role of Council Compliance officers BEYOND the role that police had previously had. This alone increases chances for corruption and is against the spirit of the 1996 legislation.
• Brothels make up less than 1% of complaints received by Councils such as Marrickville, and are not representative of the bulk of complaints
• The investment required to investigate using a “compliance team” is an overuse of limited Council resources – swarms of people are unnecessary
• The current draft compliance responses to ICAC go too far, would lead to unnecessary delays in processes, strain relationships with operators, and are not the same for other land uses.
• Search warrants are not necessary for most situations
• Video recording of visits to premises could breach privacy rights of clients and workers – better to just take still photos to provide snapshots of compliance related matters, not of individuals.
• In regards to reporting final outcomes: requiring “orders” or Pins” removes the discretionary powers from Council Officers.
• If a premises is unauthorised, better practice requires that Council will provide information and education and if sex services are a permissible land use in that zone, will recommend operator submit to DA process
• Resources must be made available to assist with any language barriers.
• Corruption risks arise with other regulatory matters Council covers – like food shops, building inspectors and parking meters – brothels are not a big part of the work of council.
• Taskforce Flow Charts are an over-reaction to Parramatta situation. Since 2003 Parramatta Council has been identified as an example of the worst practice in overly-restrictive regulatory regimes that inevitably lead to corruption[10].
• Councils already have Codes of Conduct which cover: ethical and legal behaviours and reporting corruption; with internal controls to reduce corruption potentials.

  

RECOMMENDATIONS

1.Appoint a sex industry liaison officer within the Department of Planning. This position would require a demonstrable understanding of the NSW sex industry and the intent and justification of decriminalisation. Their role would be to assist councils to abide by the guiding principles for sex industry planning identified in the SSPPG (p.3), which would be very timely during the current round of LEP reviews.

2.Remove discriminatory provisions against sex workers within the standard LEP by amending the Dictionary definitions of ‘home occupation’, ‘home business’ and ‘home industry’ [11] OR, make a State Policy to enable premises where a minimum of up to 2 workers work together to operate as an ‘exempt development’

3.Introduce a State Policy to make commercial SSP a permissible use in all commercial areas

4.Revise and update the existing SSPPG and distribute to councils with a training component as an ongoing resource for councils.

5. Promote the development and use of simple ‘Fact sheets’ to address and appropriately respond to community concerns and public perceptions of safety issues. Sample Fact sheets are available in the SSPPG at Appendix E)

6.Support and fund the development of a half-day training program[12], to:

·inform councillors of the rationale behind decriminalisation;

·explain the legislative framework including the Standard LEP;

·explore the impact of planning on Occupational Health and Safety, competition, economic and social outcomes and in the sex industry;

·reveal the reality of amenity issues;

·review case law; and

·instruct on better practice compliance activities

In conclusion, we implore the government to ensure local councils and communities are adequately resourced to enable them

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