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Tilting at Windmills

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The Interim Version as submitted



The formatting looks better in Word ... :wacko:


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:

"A corollary of having sufficient protections for sex workers is that they should feel empowered to undertake actions that assist with or enhance their protection, ..."

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:

"Migrant sex workers

• No migrant participants admitted to providing sexual services. Consequently, these participants argued that saliva testing was not relevant and no swabs were collected from this population."

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



Questions for consideration:

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:

"Council’s Compliance Unit processes over 3,000 complaints across a range of issues each year. Complaints regarding alleged illegal brothel activity have been lodged predominately by operators of legitimate brothel businesses or their agents and represent about 0.2% of all complaints processed each year by the Compliance Unit."

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:

[Resident], whose house is 15m from the brothel, said he had never heard any noise or had any trouble with the business.

“My wife and I feel the operation of the brothel is very low-key and we have never noticed anyone arriving or leaving,” [Resident] said. “We are happy to live here and are more concerned about alcohol consumption by larrikins.”

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"


(Southern Highlands) [10.00 a.m.]:

.... The building at 29 Newland Street is a multistorey block in the centre of the Bondi central business district, one block from a church and across the road from a public park, a childcare centre and several residences. The building at 29 Newland Street itself contains residences. The building foyer lists a number of business names on the directory board including Mistys, Michelles, Terrys, Sarahs and Studio One, and other such names. The night I saw the building, one of the glass panels in the foyer was smashed and partly repaired. ...

... On 16 February 2004 the
Daily Telegraph
called the building the "tower of sin". .... One resident tells me that at many times of the day or night lines of men are in the corridors waiting, as he puts it, to be serviced in these allegedly illegal brothels in the building"

Another report of residential impact was in the Parramatta/Harris Park area:

(Parramatta) [5.49 p.m.]:

I raise a serious issue for my electorate of Parramatta, that is, the proliferation of brothels in suburban areas and the enormous difficulty Parramatta council is having in closing them down. On 25 November 1999 I attended a public meeting in Harris Park that was held to discuss the effect brothels were having on the lifestyle of the Parramatta community. The catalyst for the meeting was the disturbance being caused by some brothels in residential neighbourhoods. Brothel clients were frequently intoxicated, approaching the wrong houses, accosting women in the street and making loud noises at night. The meeting was very volatile and emotional.

There were some horrific cases. In one case a brothel was established next door to the residence of a woman and her two teenage daughters, who were of school age. They frequently had men coming to their door by mistake, and the daughters were accosted as they were coming home from school. It was a very upsetting meeting. Out of that meeting the then Attorney General, Jeff Shaw, announced the establishment of a task force."


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.


Questions for consideration:

Do you have any information about whether councils treat sex services premises differently to other businesses with similar amenity impacts?


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:

"... previous approved uses on the site have included a similar parking shortfall and the proposed development does not exacerbate that situation."

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:

"a. Insufficient car parking is provided for the development in accordance with Council’s Car Parking Development Control Plan.

b. The proposal is not supported upon the site given its potential to impact upon both current and future uses on sites surrounding the subject property.

c. The proposal will create unacceptable cumulative impacts.

d. The development is likely to have an adverse social impact on the local community.

e. The development is likely to have an adverse economic impact on the local community.

f. The proposed development is not considered to be in the public interest.

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 [2011] NSWLEC 1100). Part of the Court's conclusions were (paragraph 25):

'Insofar as there were a number of other objections, these were mainly concerned with moral issues associated with brothels. However considering the applications compliance with the prevailing controls, I do not consider the objections in this regard should result in the refusal of the application."

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:

3. Satisfactory access has not been provided for people with disability.

4. The proposal does not comply with the Access and Mobility Development Control Plan.

5. A crime risk assessment has not been provided in accordance with the requirements of the Pennant Hills Commercial Centre and Business Lands Development Control Plan.

6. The proposed development is unable to provide safe means of access to the site via the laneway from Harold Avenue.

7. There is inadequate casual surveillance of the public laneway to facilitate personal safety in the vicinity of the premises.

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.


Questions for consideration:

Are there any justifications for councils to treat sex services premises differently to other businesses with similar amenity impacts?


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)

What Hornsby Councillors said when rejecting the brothel proposed for George St:

- Cr Steve Evans rejected the brothel on ``moral’’ grounds, ``this world is getting bad enough as it is when it comes to moral standards. My moral standards are a little bit higher than this.”

- Cr Steve Russell said the George St area could become a red light district if the brothel was approved.

- Mayor Nick Berman said it was ``proven’’ there was a link between brothels and drug and criminal activity.
(This assertion was based on then recent stories in the Telegraph)

- Cr Wendy McMurdo said council would ``lose’’ if the applicant appealed to the Land and Environment Court.
(I believe this statement was actually made by Councillor Martin)



Questions for consideration:

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.


Recommended Comments

I still intend to finish it. What is here is probably two thirds of what I envisage the final version will be The rest is roughed out. A fair slab of what is here (and what is still to come) is stuff that I had already written or alluded to on the forums (or in the occasional email). The time consuming part was finding it all again and then finding the source .... and getting sidetracked on other leads.

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