The failure of prostitution law reform*
| Author | Marcia Neave |
| DOI | 10.1177/000486588802100403 |
| Published date | 01 December 1988 |
| Date | 01 December 1988 |
202 (1988) 21
ANZJ
Crim
THE FAILURE OF PROSTITUTION LAW REFORM*
Marcia Neave**
Introduction
It is a great honour to be invited to deliver the Sir John Barry Memorial Lecture.
In an Essay reviewing Sir John Barry's judgments, Professor Geoffrey Sawer spoke
of his
acceptance or at least tolerance of contemporary values, concern for human problems, the desire to
avoid entanglement in legal historicism for its own sake, acceptance of scientific knowledge, and similar
qualities which help to distinguish the "liberal" from the "conservative". 1
Although Sir John died nearly 20 years ago, his judgments and scholarly articles
are still highly regarded for their clarity and wisdom.
During his later years on the bench Sir John sat mainly in the matrimonial causes
jurisdiction, but his international reputation derives mainly from his writings on
crime and criminology. In 1959 he wrote an article for the British Journal
of
Delinquency under the title "Prostitution -Report from Australia".2 The topic for
my lecture tonight is "The Failure of Prostitution Law Reform" asubject which I
believe would have fallen squarely within his field of interest.
Throughout recorded history and in a wide range of societies it has been
customary for men to pay women for their sexual services. Although more
permissive social attitudes to female sexuality in the 20th century may have slightly
reduced male demand for paid sex, the business of prostitution continues to thrive.
In 1986 a Select Committee of the New South Wales Legislative Assembly
estimated that around 18,000 men sought the services of a prostitute each week in
that State and that between 1500 and 2200 people were working as prostitutes on
an average day in New South Wales. The Victorian Inquiry into Prostitution
estimated that between 3000 and 4000 people (mainly women) worked regularly as
prostitutes in Victoria.'
Although there is a strong demand for prostitution services in Australia, those
involved in the business are generally subject to legal penalties. Australian
prostitution laws were originally based on an English model which distinguished
between the act of prostitution, which was not illegal, and prostitution-related
activities such as brothel keeping, procuring and living on the earnings of
prostitution, which were criminal offences. Under English law it was not an offence
for a woman to work in a brothel but it was illegal for a "common prostitute" to
solicit or loiter in a public place for the purposes of prostitution." Legislation in
Australia expanded these laws, reducing the distinction between the act of
prostitution and prostitution-related activities, and criminalising most women
working as prostitutes. Four States, Queensland, Western Australia, South
Australia and Tasmania continue to impose penalties on most aspects of
prostitution.' Although prostitutes who work in brothels in these States may be
prosecuted for a variety of offences, in Queensland, Western Australia and
Tasmania, it is not an offence for a prostitute to work on a freelance basis." This is
not the case in South Australia, where even a woman who sees clients by
appointment in her own home is committing a criminal offence.7
*The Fifteenth Annual John Barry Memorial Lecture, delivered on 12 September 1988.
** Professor of Law, Law Faculty, University of Adelaide, SA.
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