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When is a massage business defined as a ‘brothel’?

Any premises that provides a sexual service is legally considered to be a brothel. The law is clear that—even if it advertises and/or pretends to be a massage service, sauna bath, steam bath, photo studio, facility for physical exercise, or health studio—if the business provides a sexual service, it is legally considered a brothel.

When is a massage worker providing a sexual service?

If a massage worker provides body slides, hand relief, oral sex or sexual intercourse the courts say they are providing a sexual service. Nude massage and other services can also be defined as a sexual service by the police, council workers and courts. 

What control do councils have over massage businesses?

Massage services have to comply with local council regulations. Operators may need to lodge a DA with local council to seek permission to run the business. 

Councils make a distinction between therapeutic massage and sexual services. Massage services with development consent usually find that the conditions state prostitution or sexual services are not to be provided.

Councils can take action to close down massage businesses that do not have council approval or are acting outside approval—such as providing sexual services in breach of DA conditions.

For more information, read the sections on working with local councils.

What powers do police have over massage services under the Summary Offences Act?

Under the Summary Offences Act (1988), police can charge anyone who advertises a massage business that is also offering a sexual service. Sex workers, managers, the person named in the lease as tenant and business operators could be charged—although the police rarely use these laws. They prefer to involve the local council, which takes action itself.

Police cannot shut down a massage business—councils have to do that.

Can a massage business legally advertise sexual services?

No, a massage business cannot legally advertise sexual services anywhere—in the paper, over the phone, internet or in the workplace—because:

  • it is an offence for a business claiming to be a massage business or some other ‘cover’ to provide sexual services  
  • it is an offence for anyone to advertise sexual services 
  • police can charge everyone involved, including the owner, manager, support staff and sex workers. But these laws are rarely enforced
  • it is now more common for the police to involve the local council, which could require the business to put in a DA for a brothel, order that the sexual services cease or order that the business be closed.

How would massage parlours get caught?

The usual way that workers, contractors, receptionists, owners or businesses get caught breaking the law is by police, council staff or private investigators employed by council coming to the sex services premises to gather evidence. Investigators can come to the premises and pretend to be a client. Their aim is to establish whether they can arrange to get a sexual service—such as hand relief, oral sex, body slides or full service.

Conversation with the receptionist can be used as evidence, particularly if ‘happy endings’ or other sexual services are discussed. In addition, circumstantial evidence such as the gender of patrons, layout of rooms and equipment can be used, as well as evidence the business is advertising in the adult services classifieds. 

Can the owner or manager claim they do not know what the worker or contractor is doing in the room?

Yes, owners or managers can claim they do not know what the worker or contractor is doing in the room. But they can still be charged with an offence if they have not taken sufficient action to prevent a sexual service from being offered.

Would a massage certificate ‘protect’ the workers, contractors and the business?

No, a massage certificate will not always ‘protect’ people working in the business. The police can use the certificate as evidence that the business is pretending to be a massage parlour yet is really a brothel, if evidence of prostitution—sexual services being advertised, offered, available or provided—is also found. Even though the massage certificate may allow you to advertise in the ‘massage’ section of the paper, it will not protect you legally if you are providing a sexual service at the same time.

DO NOT FORGET: Under the NSW definition of a brothel, massage premises where body slides, hand relief, oral sex or full sex services are available, will be treated as a brothel by the local council.  If they do not have approval to operate as sex services premises, the premises may be investigated and closed.