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1.
THE LEGAL FRAMEWORK
IN THE 1830S, VICTORIA WAS INVADED by a bunch of land-hungry European men with shiploads of cloven-footed animals. Melbourne was part of the Kulin nation in those days, but the invaders only knew it as Port Phillip. The men came from a place across Bass Strait then known as Van Diemenâs Land â now Tasmania â and the ships, carrying mainly sheep, poured through the Heads and into Port Phillip Bay, bringing with them more than a few women who were willing to trade sex for money.
Just like the men, most of these women were opportunists, responding to the exigencies of life in a frontier environment. But unlike the men, the women had severely limited options for making an independent living. There were few jobs for governesses and none for factory hands, and the population was constantly on the move. While there was always cooking to be done, and washing, and the usual round of domestic and service chores that could be taken up in wooden huts without the benefits of running water or gas stoves, such jobs were physically demanding and as fickle as the men offering them â they only lasted as long as a womanâs health was good and the men remained in town. So when a sailor offered an out-of-work servant woman some money in return for her favours, there were doubtless times when the offer was taken up out of unusual necessity rather than habit.
The settlement of the Port Phillip District of the colony of New South Wales was initially illegal, so it policed itself until the first government representatives arrived late in 1836. It was then subject to the laws of New South Wales, which meant that women selling sex were governed by laws relating to vagrancy.1 They could be charged with behaving âin a riotous or indecent mannerâ, being âidle and disorderlyâ or âhaving no visible lawful means of supportâ, but supplying sex in return for money was not itself defined as an offence. Nevertheless, some citizens were offended.
The Port Phillip Patriot and Melbourne Advertiser, published by prominent businessman John Pascoe Fawkner, reported the existence of âwomen of bad habitsâ as early as 13 February 1839 and mentioned a âhouse of ill fameâ on 24 April of the same year. Both reports reveal more about early Melbourne than the prevalence of sex workers.
The first informs us that a police constable was âfound guilty of driving two women of bad habits through the town on Sabbath day lastâ and was âmulcted 14 daysâ pay and warned to be more circumspect for the futureâ. We do not know whether his crime was associating with the women in the first place, or doing so on the Sabbath, but the advice to âbe more circumspectâ was typical of the time and place. âDo whatever you like, just donât get caughtâ was a message that reverberated in Melbourne throughout the 1830s with regard to most things, including prostitution.
The second report advises us that two men âassigned to Mr Commissary Howard were found by Constable Smith in a house of ill fameâ and received âthe usual modicum [of ] 50 lashes on the naked backâ. âLashes?â, you might ask. âFor visiting a brothel?â Victoria, it is often said, was not a penal colony. It never received the boatloads of prisoners that inflicted the convict stain on the reputations of the New South Wales, Van Diemenâs Land and Swan River colonies. But here in John Fawknerâs newspaper of 1839 we have a more naked truth: of course there were convicts in Victoria â they came with the sheep. And with public servants like Assistant Commissary Howard (who looked after the government supply store). They also came with surveyors and with Captain Lonsdale, the police magistrate. Some of the convicts were ticket-of-leave men, but many were still âworking for the governmentâ and subject to the lash for all sorts of misdemeanours. The two men found in the house of ill fame were breaking the rules of their government service, rather than a civilian law against visiting brothels.
Attitudes to prostitution seemingly began to change in the 1840s. A constable found in a disorderly house in June 1840 was dismissed rather than cautioned to be more circumspect, and he also forfeited the entire arrears of pay due to him.2 Very soon there were enough brothels in Melbourne for Fawknerâs newspaper to grade them according to their nuisance value and to direct the attention of the police to the worst of them. In October 1841, he pointed out three brothels âwhere disgraceful and disgusting scenes are nightly carried on, to the scandal of every reputable inhabitant in the neighbourhoodâ.3 Fawkner, however, was hardly a disinterested critic. His objections were probably aroused by the sale of sly grog at the houses, as reported in the same article. While John Fawkner was a teetotaller, he was also a publican, so his complaint was not about the dangers of inebriation and the evils of drink. A disorderly brothel might have been readily ignored, but a sly-grog-selling brothel was a rival to be eradicated.
In August 1842, Melbourne was formally declared a town, and along with its incorporation came the capacity to make its own by-laws. Fawkner, who would be elected to office at the end of the year, was keen to see Melbourne develop a set of rules âfor the prevention and suppression of all nuisances whateverâ, including âthe suppression and restraint of disorderly houses, and houses of ill fame and reputeâ, but none eventuated.4
Melbourne was declared a city in 1847, yet by 1850 there were still no by-laws specifically governing brothels or prostitution, although there were plenty regarding markets and the movements of cattle through the streets.5 From this time, there were always areas of the city that visitors described in less than glowing terms. âSlumâ was the usual description:
Strangers who visited Melbourne, when they walked down Collins Street, were struck with the beauty of the city, but when they got into Little Collins Street or any of the lanes, they thought they were in the back slums of St Giles.6
Part of the problem was the lack of funds for the public works needed to support Melbourneâs population, which grew from 600 people in 1841 to roughly half a million by 1900.7 It was all very well to criticise âthe condition of the courts, alleys and lanes â the utter want of anything like drainage, the pools of stagnant water, and the accumulation of filthâ, but who was going to stump up the capital to build the much-needed drains and sewers, and form the pavements, let alone provide the infrastructure to support municipal rubbish collections and a proper water supply?8
There was also a lack of experience among elected officials. When Melbourne was awarded the title of âcityâ, it was still barely a decade old, and its councillors had no idea how to create a city out of a vista of timber huts and raw tree stumps, much less how to navigate the world of high finance, where the money for public building works would need to be found.
Then, in 1851, the gold rushes hit Victoria, and the whole game changed. Gold flowed through Melbourne in extraordinary quantities; at the peak of the rush for alluvial gold, close to 95,000 kilograms were extracted in Victoria, and the diggers spent much of their earnings in Melbourne. That meant a lot of champagne, a lot of celebratory singing and dancing, and a lot of brothels. It also meant more horses and bullocks in the streets, more men needing urinals, more houses and hotels needing water and privies, and generally an enormous demand for material goods and basic infrastructure amid an atmosphere of disorder and frontier hustle.
But 1851 also brought a measure of independence to the Port Phillip District, in the shape of its separation from New South Wales to form the colony of Victoria. From 1 July, Victoria had its own legislative body and could make its own laws; it could also set its own budget and direction for civic improvements. The disorder of the gold rush years led to a flurry of legislation aimed at improving public amenities and controlling public behaviour.
The introduction of the Vagrant Act 1852 had the potential to make life difficult for sex workers. Police still couldnât move directly against women for the commercial provision of sex, but they could arrest âidle and disorderly personsâ for such offences as drunkenness, âhaving no visible lawful means or insufficient lawful means of supportâ, or occupying a house frequented by âthieves or persons who have no visible lawful means of supportâ. A brothel was commonly referred to as a âdisorderly houseâ, but this was a term that covered a multitude of nuisances, including gambling dens, rowdy dance venues and hangouts for drunken sailors singing obscene songs, and they were all no more than a small part of the overall unruliness of Melbourne in the 1850s.9
The Town and Country Police Act 1854 addressed prostitution more directly, making it illegal for the keeper of a refreshment house to âsuffer prostitutes or persons of notoriously bad character to assemble thereinâ. The term âprostituteâ was not defined in the legislation, but everyone thought they knew what it meant, including the newspapers, which constantly reported that prostitutes had been arrested, charged, convicted and sentenced for running brothels and soliciting in the streets. It seems both the police and the magistrates were implementing a non-existent law, or else the newspapers were misreporting court proceedings on a regular basis.
The question of how to regulate prostitution to the satisfaction of the complaining public dogged police and magistrates throughout the nineteenth century. Police could prosecute sex workers if they crossed the line from âquietâ to âdisorderlyâ, but the rules about what constituted âdisorderlyâ differed from neighbourhood to neighbourhood. In middle-class homes, swearing or appearing in the street without a bonnet and gloves was frowned upon, and in upper-class areas, petticoats were never glimpsed in public, and dancing was done in ballrooms rather than in the street. In Little Lon, drunkenness was common, language was frequently loud and colourful, violence was not unusual and houses in the back lanes were so small and overcrowded that people socialised outside in the lanes and streets.
Police were frequently on the beat among the people of Little Lon, and some even lived there, making them arguably part of the community; they knew which houses were brothels or variations on the theme, but until the late nineteenth century they tended to ignore discreet brothels and women soliciting in the streets unless there were complaints. A written complaint to the Chief Commissioner of Police was always investigated, but if the complaint offered no evidence of criminal activity, it often elicited a letter from the police describing the objectionable behaviour as ânot conducted in a disorderly manner within the meaning of the lawâ. Police on the beat were more inclined to warn the women of Little Lon to behave better than to prosecute them or move them on, unless the subject of a complaint had committed assault or theft, or was socially disruptive (making noise in the streets late at night, for example, or congregating where they were unwelcome).
Apart from anything else, police recognised that evicting groups of women from one area simply meant they would appear somewhere else, and their empty houses would more than likely be taken up by similar tenants. âThese women have to live somewhereâ was a common police response to complaints about nuisance brothels through much of the nineteenth century.
Magistrates, for their part, tended to dismiss cases against women arrested for disorderly conduct unless they were shown to be guilty of theft or violence. In May 1853, for example,
two rather stylishly dressed females, named Kate Saunders and Sarah Matsell, were complained of ... at the City Police Court, for keeping what was considered by some of the neighbors as a disorderly house ... The evidence was of a nature which is not fit for publication. The defence was that they were...