How an overhaul of NSW sex industry could help councils

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A specialist police unit should be created to take over responsibility from local councils for closing down illegal brothels and dealing with criminal activity, a recent parliamentary inquiry has found.

The Select Committee on the Regulation of Brothels recommended establishing a NSW Police Force Sex Industry Co-ordination Unit to help councils identify and shut down illegal brothels and enforce current planning laws. The unit would also co-ordinate efforts to eradicate sex trafficking, organised crime and the exploitation of sex workers in brothels.

The report said: “Councils are ill-equipped to close down unauthorised brothels and to deal with criminal activity. State government agencies, including the new Police Unit, should be mobilised to take over these roles. It also finds that councils are best placed to make decisions about the locations of brothels in their areas.”

The committee wants brothels – not sex workers – to be licensed and brothel owners and managers required to prove they are fit and proper persons to own and manage premises (this would not exclude sex workers).

The police unit would support councils to regulate and enforce the new system, including running education sessions for councils on relevant planning legislation and clearing up the current confusion surrounding brothel regulation, which the report recommends should be consolidated.

It also asks the NSW government to consider letting the NSW Police Force take the lead in prosecutions, suggesting local councils first notify the new NSW Police Force Sex Industry Co-ordination Unit of any suspected planning breaches and then the police and new licensing body investigate this and any other illegal activity.

NSW Police would prosecute any licensing or criminal matters but also have the option of prosecuting planning breaches, or allowing local government to do this to save money and duplication.

But it makes clear that councils would retain control of planning and development approval decisions about the location of brothels in their areas.

Other suggestions include easing the burden of proof on councils, for example being able to use solicitation as evidence, rather than requiring an investigator to have sex, and using circumstantial evidence and blogs or social media to prove sex work is illegally taking place.

The NSW Police Commissioner would also be given the power to issue interim closure orders on an unlicensed brothel or where criminal activity is suspected and the courts could issue a long-term closure order if they were satisfied a brothel was unlicensed or where criminal activity had occurred or was likely.

Sex work was decriminalised in NSW 1995 but the committee argues that 20 years of near complete deregulation – with the exception of planning controls enforced by councils – has allowed organised criminal groups to flourish, sexual slavery to increase and vulnerable sex workers to be exploited.

The sex industry has been a vexed issue for local government for years because of the regulatory confusion surrounding it and the expensive, lengthy and often unsuccessful court cases needed to shut down rogue operators.

As well, it is an issue that causes consternation and distress among some ratepayers.

While there are strict rules specifying how close a brothel can be to places where children are likely to be – such as schools or childcare centres – and also to places of worship, NSW councils are legally required to allow brothels in other zones.

Local councils have long complained that the resources needed to police the sex industry and the burden of proof required to shut down illegal brothels has sucked in council time and money, with little result in the courts.

The famous horror example is that of Hornsby Council, which spent $60,000 trying to shut down an illegal brothel, including paying a private investigator to have sex on the premises, but lost its case on a technicality over the legal definition of a brothel.

Many councils gave evidence to the parliamentary inquiry, with some saying that it was very difficult to investigate planning breaches and to prevent rogue operators from popping up again.

One council said a new business opened up within a week of it slapping a closure order on an illegal brothel so it had to begin the often long and expensive process all over again.

Report recommendations included easing the burden on councils by allowing them to use circumstantial evidence, by exempting blogs and social media mentioning unlicensed premises from the hearsay rule and ruling that solicitation by a sex worker of a person at a suspected brothel be enough evidence sex work is taking place at the premises.

The report has recommended that councils be given more resources to investigate and prosecute illegal brothel owners and managers if licensing is not introduced. It said the NSW Office of Local Government should give councils advice on investigation, evidence gathering and prosecution.

But although NSW councils are likely to support the report’s recommendations the Scarlett Alliance, the peak body for sex workers in Australia, has criticised it saying it will lead to a proliferation of underground brothels and arguing that the police are inappropriate regulators of the sex industry.

Report recommendations that could help NSW councils:

Police
• Mobilise specialist police unit to close down brothels and deal with criminal activity and co-ordinate government response at all three levels
• NSW Police to take the lead on prosecutions and be able to prosecute for planning breaches at the same time as licensing and criminal matters
• Introduce a licensing system and make the register public
• Brothel owners and managers required to be fit and proper persons
• Stronger powers of entry, search and seizure for NSW Police, similar to those around tattoo parlours
• Allow NSW Police to issue interim closure orders and courts to issue long-term closure orders to unlicensed premises or where there is criminal activity

Councils
• Give councils  powers to enter suspicious premises without advance notice to owners and to take evidence
• Courts to attach a brothel closure order to a premises, not just the business owner, for a specified time and include prohibited uses, e.g. as a massage parlour
• Allowing councils to use circumstantial evidence, social media and blogs
• Councils to retain role in assessing location of brothels and granting planning approval
• Give councils more resources to help them investigate and prosecute owners and operators of unauthorised brothels, if a license scheme isn’t introduce
• NSW Office of Local Government to give councils advice on investigation, evidence gathering and prosecution

Governance
• Consolidate and clarify legislation around brothels, e.g. a uniform definition of a brothel
• Better co-ordination between councils and bodies such as NSW Police, NSW Health and SafeWork NSW and the Australian Taxation Office
• NSW government to create a body to administer licensing process.

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