‘If you didn’t have prostitutes there would be so much more rape. We’re human shields.’
– Maria*, (not her real name), a survivor of the sex industry after twenty years
If we really care what happens to people, what place does prostitution/sex work have in our society? The people that do this work — are they safe, are they respected? Reformers usually push to align modern legislation with changing community attitudes toward sexuality and there are many humane and rational benefits in this trend. If we aspire to be a compassionate and enlightened society, how do we reconcile the conflicting needs and demands around the question of paying for sexual gratification?
Some people take the view that prostitution acts as a safety valve for the rest of society. Do the safety and happiness of the lucky majority depend cynically on the suffering and exploitation of a few human shields? At its simplest and most benign definition, one might regard prostitution as something that some men want from women and pay for; and conversely what some women might want to do to make money — indeed the cliché is that prostitution is humanity’s oldest profession. Like the poor, prostitution is always with us (and tragically, many of the workers, unlike their employers, are indeed also poor). In that view, prostitution is ‘sex work’, and sex work is ‘just work’, and should be regarded as just another kind of job. This is a view that tends to be held mostly by those who would describe themselves as being on the compassionate and progressive side of politics, and who would wish that laws did not tend to discriminate against or victimise people who are working in the sex industry.
There is another, more critical view of prostitution that is held by many feminists and also by mainstream conservatives — two distinct groups of people who don’t often agree yet share deep concerns about this matter. They come from different positions and still join up with the idea that the sex industry is a ruthless exploiter of vulnerable women (and girls and boys), and therefore needs to be at least controlled and overseen by the state to ensure that community standards of care and respect are upheld.
Increasingly, around Australia, states are bringing in legislation that reflects the view that prostitution should be treated just like any other kind of work. New South Wales did so in 1995, as did the Northern Territory in 2019 and Victoria has done so this year (2022). South Australia has not yet decriminalised prostitution, despite several failed attempts to introduce such legislation initiated by the Greens. Queensland’s Labor government looks likely to succeed in legislating to decriminalise prostitution; its review process has been open to the public, with a seven-week consultation period that invited the whole community to have a say in the process. The Law Reform Commission has had charge of the review, which is the usual procedure when laws in Australia, whether state or federal, are being reformed or changed.
In Victoria the process that led towards the passing of the Sex Work Decriminalisation Act of 2022 has been very different from Queensland’s. The rosiest and most positive view of sex work has found strong support in the Andrews Labor government. With very little public debate or consultation, Victoria has repealed almost all laws relating to prostitution (excepting only the exploitation of minors for commercial sex and some location restrictions on soliciting). Alone among all recreational activities, sex for payment is now unrestricted, even regarding health and safety.
In Victoria, before the Prostitution Control Act (Vic) 1994, and similar legislation in other Australian jurisdictions, prostitution was once seen as a form of immorality. The focus used to be the ‘immoral woman’ — an obvious myth since it is men who use the prostituted woman’s body for gratification. Victoria’s 1994 Prostitution Control Act (renamed the Sex Work Act (Vic) 1994) expressed many noble aims, the Act itself reflecting a care for prostituted people, recognising the risks inherent in the trade. The objects of the 1994 Act reflected the community view that women in prostitution were no longer seen as immoral but, like drinkers, gamblers, drivers and smokers, were in danger from many risks and hazards inherent in the activity.
In 2016 there were changes to the Regulations of the 1994 Act. A report on the ABC News site (Fri 29 Jan 2016) quotes the then Minister for Consumer Affairs, Jane Garrett, as saying, ‘Any major changes to legislation would need greater community and stakeholder consultation’. But six years later, the rushed and secretive process resulting in the new Act has raised troubling questions: how did the Andrews government weigh community and stakeholder views? How has this legislation come to parliament and now into law?
‘They’re all married, you know — doctors, teachers, respectable types. And they all want to do it without condoms.’ Emily*, survivor
‘They think it’s totally fine to marry someone today and be in a parlour tomorrow.’ Maria*
The path to legislation
Victoria has chosen a path to legislation that is very different from the process undergone in Queensland. Victorian upper house member Fiona Patten of the Reason Party, previously the Sex Party, has been a prime mover of the new legislation and was the sole author of the review that led to it. The leadup to the legislation was unusual, to say the least: only two weeks of public consultation were allowed. Many Local Councils were caught unaware of the process and were thus prevented from contributing their views. Instead of the usual Law Reform Commission or Parliamentary Inquiry taking the lead on the review of the existing legislation, only Ms Patten was given the task. Victoria’s resultant new Act was the wish list of the sex industry.
The Coalition Against Trafficking of Women Australia (CATWA) made a lengthy and deeply researched submission to Patten’s review and proposed the Nordic model* for sex work; this proposal was summarily dismissed in the speech introducing the resultant legislation*.
*'Under the Nordic model (named as such because it originated in Sweden and Norway), clients are the only people criminalised and sex workers are not only decriminalised but given extensive support to leave the industry. The Nordic Model has been shown to be effective against sex trafficking and emphasises programs to reduce demand, such as offering education around prostitution as violence against women. Unsurprisingly then, the model is extremely unpopular among brothel owners and pimps, who have frequently lobbied hard and expensively against it all over the world, whenever it has been proposed.'
Under Freedom of Information (FOI), CATWA asked to see a redacted copy of the review paper, but this was refused*. Among the reasons given for the refusal was that the Patten Review document had been transmitted to Cabinet and thereby avoided FOI disclosure under that exception, along with all the public submissions to the review process. An Opposition motion to pause for disclosure of Patten’s review to other members of parliament was defeated.
Using one person to take submissions from the public and then have those submissions and the person’s resulting review disappear into a black hole, is not the ‘greater community and stakeholder consultation’ referred to by Minister Garrett in 2016. The contrast with Queensland’s process could not be greater. Given this highly unusual degree of secrecy and Patten’s long and public involvement with the sex industry, we can reasonably ask: what’s the purpose of decriminalisation? Is it to help sex workers have a better life — or is it to promote the interests and profits of stakeholders in the industry?
As leader of the Reason Party (formerly the Sex Party), Fiona Patten appears to have a longstanding and influential relationship with the ALP: they preference each other in elections and she has worked closely with the ALP in other ways. In 2015, her then Sex Party’s Facebook page showed a friendly meeting at Trades Hall with the then-Minister for Equality Martin Foley. The occasion was the launch of a campaign to decriminalise prostitution.
Fiona Patten’s register of interests on the parliamentary website gives Grillon Pty Ltd., a company held privately by Patten and her partner Robbie Swan; Grillon Pty Ltd owns a business called ‘Body Politics’ — an ACT-based PR firm whose website informs us:
Body Politics was formed in 1988 and is based in Canberra's leafy inner suburb of Yarralumla. The company was founded by its two current directors, Fiona Patten and Robbie Swan and combines their different approaches to public relations, lobbying and business development.
Our client base is diverse and includes:
- The Australian Sports Commission
- The Australian Labor Party
- Australian Consolidated Press
- Channel 10
- The Eros Association
- Radio 2UE
- The Dyntilda Trust
Fiona Patten’s links with the Eros Association, a lobby group for the sex industry, go back many years, beginning when she was its CEO under its name as the then Eros Foundation. The association’s aims are clear, and in my opinion, reflect the industry’s wish to operate under its own standards rather than those imposed by members of the wider community. In 1992 she contested a seat in ACT on a platform of reform of sex work legislation. She has been extensively interviewed in the media about her own personal experiences as a sex worker.
Who benefits from the new Act?
The new Act must have pleased the sex industry’s business stakeholders. The complicated health regulations are gone. Chain operators can arise. The purposes of the old Act have been largely abandoned and worryingly, the section relating to intimidation of a sex worker seems no longer to exist (S16 Sex Work Act (Vic) 1994).
The new Act raises the question: why have any laws at all that restrict a person’s choices about recreational activities? The 1994 Act placed the sex industry’s regulation on a par with the thinking behind legal restrictions on gambling, alcohol, smoking and driving. Governments don’t hesitate to make restrictive laws to protect people’s bodies and property — Victoria last month slapped limitations on the amount of time and money people are allowed to spend on gambling. Even a product like stone kitchen benches can be banned because of catastrophic lung damage suffered by the workers. And the physical injuries commonly suffered by sex workers make heartrending reading. But Victoria now places no restrictions or regulations on customers of the sex trade, who themselves can be at risk.
‘I’ve known men with a sex addiction who’ve lost everything; three times a day visiting the brothel.’ Maria*
The new legislation: Sex Work Decriminalisation Act (Vic) 2022 now has no offences around the act of prostitution for any participant. There is now no legal definition of prostitution in the new legislation, no need to be licensed as such and no specific health and safety requirements such as testing for STIs and mandated use of condoms.
The previous laws prohibited a person from owning more than one brothel: that restriction is now gone: chains, franchises, can be owned. The restrictions against alcohol sales in brothels are now gone; it is difficult to imagine how this could possibly improve the safety and wellbeing of a woman who finds herself having to work with clients affected by alcohol. Private and public landlords will be unable to prevent their premises being used for prostitution, as that will be seen as discriminatory. This is the picture for all the jurisdictions which opt for decriminalisation.
What will be restricted?
Ordinary citizens’ ability to object to brothels and explicit advertising near their homes. Hotel owners and councils will now be unable to prevent brothels being set up on their premises or areas of responsibility, as the Act specifically repeals their rights to do this. Publicly funded grants to sectors of the sex industry will not be able to be rejected.
The protections in Victoria’s 1994 Act were aimed at preventing organised crime from taking over the industry; promoting public health; giving workers a way of pursuing the activity legally by being licensed and by having business owners also registered and complying. The requirements demanded a high level of compliance both for individuals and businesses but were seen as reasonable to protect workers while fitting within community safety, expectations and tolerance. Most of these concerns are missing from the new Act.
‘They’re [brothels] horrible enough as it is, but it’s even less safe to work on your own.’ Maria*
‘They [the brothels] won’t have you if you’ve got track marks; you have to go on the street, and it’s so dangerous there.’ Emily*
Concerns held by many over the overwhelming problems suffered by workers in the sex industry remain unmet by Victoria’s new sex industry legislation. What remains constant is the chronic lack of support for women and girls in our culture; their vulnerability to physical, emotional and financial abuse in the sex industry. Sex workers are often left with permanent physical injuries from the demands made on their bodies. They are often left with PTSD and financial problems that make them targets for further exploitation. All the issues of unfairness and discrimination faced by all women in our society are faced more intensely and injuriously by sex workers.
And here is the heart of the problem with the new Act, which is largely an Act of repeal rather than of positive action: for although a worker in a brothel may be abused and exploited, the life of a street prostitute is basically perilous, chaotic and defies regulation in any fair way. Many street sex workers are drug-dependent; they lack the stability and support of good personal relationships and are desperate financially. A person needs focus and external awareness to comply with a registration and health-testing regime such as that created by the old Acts — in that situation, the Public Health and Wellbeing Act also had a role that amounted (at least in theory if not in practice) to caring oversight. The old Act did not help street workers when they were picked up, criminalised for lack of compliance, non-payment of fines and minor drug offences. They remained just as exploited and uncared for. But the new Act does not, unlike the Nordic Model, provide any exit strategy or amelioration of the onerous conditions faced by girls and women in street prostitution. The new Act provides no protection against trafficking and exploitation of women and girls by owners of brothels and by pimps.
The current legislative regime is to be reviewed after two years, presumably to see if it has achieved its purpose. At least, by decriminalising street prostitution, the new Act removes a threat of prosecution from these most vulnerable of people, who lack even the relative safety and protection afforded by a brothel. But nobody has even begun to address how to help these most desperate and needy of sex workers. The Nordic model would offer a way forward here, as would a more enlightened and scientific approach to drug addiction, the main driver of sex work, but this model has been summarily rejected by the Andrews government.
The goal of protecting the health and safety of sex workers remains at the fore of the stated concerns of the Act but how simply removing twenty-five years of regulation and mandated practices is supposed to achieve this remains unclear. Still unanswered are: how do we stop trafficking? How are sex-trade survivors going to be helped to exit and make new lives? How are we to educate boys and men to treat women better?
The Victorian public might well ask what has happened to their public interest objects, expressed in the previous Act, and what has happened to all the submissions that were made to the Patten Review. How we treat the most vulnerable says who we really are as a society. Most of Australia’s legislatures are trying to address the problems posed by having some women as objects of male appetites – not punishing the women for this is a start. But signal failure to address why some men want to hurt and exploit women’s bodies is inherent in Victoria’s removal of all checks and balances on the industry of selling people for sex.
‘Maria’ sums it up:
‘It’s how men are taught to treat women; how do we raise our men?’
Juliette Hughes is a freelance writer.
Kathy Chambers is a member of CATWA.
Main image: Close up of high heels standing outside a car. (Getty Images)