Where Is Prostitution Legal In Australia?
|Where The Prostitution Is Legal In Australia?|
Federal legislation also affects some aspects of sex work throughout Australia, and of Australian citizens abroad. Let's take a look at where prostitution is legal in this country.
Prostitution in Australia (Sex work in Australia) is governed by state and territory laws, which vary considerably. Federal legislation also affects some aspects of sex work throughout Australia, and of Australian citizens abroad.
Legal responses of the nine jurisdictions of Australia to prostitution have differed. Some of the differences have been due to political factors. Eastern Australian states and territories liberalised their laws in the late 20th century; but liberalisation has been restricted by upper houses of Parliament of several states, with legislation either defeated or extensively amended. New South Wales was the first state or territory to adopt a different model, decriminalising prostitution in 1979. This became a model for New Zealand and a failed attempt in Western Australia in 2008. Victoria and Queensland adopted different models, based on legalisation—Victoria in 1986 and Queensland in 1992. In the remaining states of Tasmania, South Australia and Western Australia, despite intense debate and many proposed legislative reforms there has been no change in the laws. The Australian Capital Territory adopted partial decriminalisation in 1992, and the Northern Territory allowed partial decriminalisation in 1992 and full decriminalisation in 2019. In all jurisdictions the issue remains divisive, and in the three eastern states with regulated prostitution there has been intermittent review. Much of the information in this article concerns cisgender heterosexual, not homosexual or transgender, prostitution. In Australia, legislation and regulation has progressively replaced the terms "prostitute" and "prostitution" with "sex worker" and "sex work".
Is Prostitution Legal in Australia?
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Prostitution and the sex work industry have been contested amongst lawmakers and the general public since their inception, resulting in ambiguity and contradiction over the past 40 years. Australia has one of the more liberal attitudes towards sex work internationally, but this does not mean that prostitution laws are not contentious.
Law-makers have had to strike a balance between upholding democratic freedoms to engage in sexual conduct, whilst also considering concerns from residents and citizens over the troublesome aspects of prostitution, which historically has included the spread of contagious diseases and concern for public health, as well as disorderly houses and public nuisance. As such, laws were introduced to not only keep the public safe, but keep sex workers safe as well.
However, the laws with regard to prostitution in Australia vary widely from state to state. People are unaware of what is legal in their state or territory due to the constantly shifting laws and jurisdictions and the taboo nature of the subject matter, making it difficult to navigate the industry for prostitution for law enforcers, sex workers and the general public.
Where in Australia is Prostitution Illegal?
New South Wales (NSW)
New South Wales is one of the more liberal states in Australia regarding sex work. It has been legal since 1995 with brothels coming under local council planning regulations. Brothels can be defined as any sex service premises, and can include a full service parlour, a one-worker premises (working from home), or massage parlours, which do not offer full sex services. Street-based sex work is also allowed on commercial streets, but prohibited in residential zones.
There are also rules regarding the act of solicitation, which refers to sex workers actively approaching potential customers or clients for payment for services outside of a designated brothel. Solicitation is considered illegal if it is done within view of a church, school, hospital, or residential dwelling, or within a business which is claiming to provide a non-sexual massage service.
Australian Capital Territory (ACT)
Sex workers, escort agencies and brothels have been legal in the ACT since 1992, when The Sex Work Act 1992 was introduced which updated and improved upon outdated rights and terminologies for sex workers. While sex workers in the ACT are allowed to work within a brothel or parlour, all sex workers who do so are required by law to register with the Office of Regulatory Services (ORS), which is now under the umbrella of Access Canberra. Sex workers have the option of operating privately as a “sole operator escort”, but must work alone.
Unlike NSW, Victoria has somewhat stricter laws governing sex work. Sex work is still legal in Victoria under the Sex Work Act 1994, and brothels have also been legalised and are heavily regulated through Consumer Affairs Victoria. Regulation includes strict registration, licensing, supply of materials (condoms, lubricant etc), and mandatory STI tests every three months for brothel-based sex workers.
Sex workers working within a brothel do not have to register with governing bodies individually as they are covered by the brothels registration. Small owner-operated brothels (up to one sex worker in this establishment, apart from operator) are exempt from registration, however they do require a permit to operate.
However, where the law differs drastically is in terms of street sex work, which is illegal and strictly enforced. Any sex worker found to be soliciting or working from the street can be charged with a criminal offence. There is currently a push from sex workers to change laws to protect sex workers and promote their safety, rather than punish them, which some believe the strict regulation does. If you or someone you know have been a victim of sexual assault, you should seek sexual assault advice from an experienced solicitor.
Queensland brothels, prostitution services and operators are legal under The Prostitution Act 1999. Brothels can be licensed by Queensland’s Prostitution Licensing Authority, however, Part 6, Division 1 of the act stipulates that unlawful prostitution includes public solicitation, nuisances connected with prostitution, duress, not using prophylactics, unlicensed brothels, massage parlour prostitution and street prostitution. As with the other east coast states, brothels are legal and can be established like any other business, however they must receive a licence by the appropriate authority and adhere to regulation by the governing body.
Northern Territory (NT)
The Northern Territory has recently passed amendments to their sex work laws which allow operators of sex work establishments to operate without obtaining a license. Instead, sex service businesses with three or more sex workers simply have to obtain a suitability certificate (which considers criminal history and compliance with health and safety procedures) from the Commissioner of Consumer affairs.
In the Northern Territory, an escort agency business and any escorts working within escort agencies are required to register at the Territory Licensing Committee and police with the exception of independent sex workers. Street prostitution is still illegal in the NT, and the word “brothel” is no longer used in legislation. These establishments are now referred to as sex service businesses, and they are legal provided all certificates and licenses are legally obtained and updated.
South Australia (SA)
South Australia has some of the strictest sex work laws in the country, with street prostitution, solicitation, receiving money for any form of sexual services, and licensed brothels being outlawed since the Criminal Law Consolidation Act of 1935 and the Summary Offences act of 1953. Despite a bill being introduced and passed by the Upper House in 2019, which would effectively decriminalise sex work in South Australia, it is still being debated in the lower house which leaves the restrictive criminal laws in place.
Western Australia (WA)
The Prostitution Act 2000 formally legalised prostitution, however it has paradoxically criminalised many associated acts and behaviour which make legally performing sex work possible such as sex service establishments and solicitation etc. For example, brothels, solicitation and street or public sex work are all illegal, as is pimping, which is the illicit management of prostitutes for profit.
The criminalisation of sex works in WA has been a topic of controversy, as it has been found that Perth brothels and street sex workers (who operate illegally), have the lowest health and safety levels, according to Perth Now.
What Are The Prostitution Laws In Australia?
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Prostitution is legal throughout Australia, however the laws in Australia differ from state to state, sometimes marginally, and sometimes drastically. For example, while forms of prostitution are legal in states like South Australia, Western Australia and Tasmania, brothels and street prostitution are not allowed in these states. On the other hand, NSW allows brothels and street prostitution, as long as they are not near, or within view of, a dwelling, school, church or hospital. Also, to be eligible to register as a sex worker legally, you must be 18 years of age or older and have no prior criminal record.
Besides age of consent, the only nationally-uniform set of laws regarding prostitution and sex work is that all forms of child prostitution, sex trafficking and sex slavery are illegal under Federal law, regardless of state.
History of prostitution
Sex work in Australia has operated differently depending on the period of time evaluated. For this reason discussion is divided into three distinct periods: convict, late colonial, and post-federation. Pre-colonial "prostitution" among Aboriginal peoples is not considered here, since it bore little resemblance to contemporary understanding of the term. The arrival of the Europeans changed this "wife exchange" system, once they started exchanging their European goods for sexual services from Aboriginal women. During the convict period, English common law applied, and dealt with brothel keeping, disorderly houses, and public nuisance. The late colonial period viewed prostitution as a public health issue, through the Contagious Diseases Acts. Since Federation in 1901, the emphasis has been on criminalising activities associated with prostitution. Although not explicitly prohibiting paid sex, the criminal law effectively produced a de facto prohibition.
Convict period 1788–1840
Prostitution probably first appeared in Australia at the time of the First Fleet in 1788. Some of the women transported to Australia had previously worked in prostitution, while others chose the profession due to economic circumstances, and a severe imbalance of the sexes. While the 1822 Bigge Inquiry refers to brothels, these were mainly women working from their own homes.
Colonial period 1840–1901
In the colonial period, prior to federation, Australia adopted the Contagious Diseases Acts of the United Kingdom between 1868 and 1879 in an attempt to control venereal disease in the military, requiring compulsory inspection of women suspected of prostitution, and could include incarceration in a lock hospital.
Federal period 1901–1970s
After federation, criminal law was left in the hands of the states. But criminal law relating to prostitution only dates from around 1910. These laws did not make the act of prostitution illegal but did criminalise many activities related to prostitution. These laws were based on English laws passed between 1860 and 1885, and related to soliciting, age restrictions, brothel keeping, and leasing accommodation.
Since the 1970s there has been a change toward liberalisation of prostitution laws, but although attitudes to prostitution are largely homogenous, the actual approaches have varied. A May 1990 Australian Institute of Criminology report recommended that prostitution not be a criminal offence, since the laws were ineffective and endangered sex workers. The NSW Wood Royal Commission into Police Corruption in 1995 recommended sex work be decriminalised to curb corruption and abuse of power. A survey conducted in the early 2000s showed that 15.6% of Australian men aged 16–59 have paid for sex at least once in their life and 1.9% had done so in the past year. Men who had paid for sex were more likely than other men to smoke, to drink more alcohol, to have had a sexually transmitted infection (STI) or been tested for HIV, to have more sexual partners, to have first had vaginal intercourse before 16, and to have had heterosexual anal intercourse.
The United Nations Programme on HIV and AIDS UNAIDS has estimated the number of sex workers in Australia in 2012–2014 as between 20–25,000. Scarlet Alliance, a national peer sex worker NGO, provides advocacy for sex workers in Australia.
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Health and safety regulations and peer education have been effective at keeping STIs in the sex worker population at a low level, similar to the general population, and comparable among the states. Although there had been claims that sex workers were responsible for STI levels in mining communities, subsequent research has shown this not to be true.
What Defines Sex Work And Prostitution?
Prostitution specifically involves the practice of engaging in sexual activity with another individual for payment. It often carries a strong negative connotation, and as such has largely been replaced by the term “sex work”, which carries less stigma.
Sex work is broadly used to describe sexual services involving consenting adults who have not been illegally obtained, coerced, groomed or trafficked.
Sex work includes:
- Exotic dancing – pole dancing, stripping, go-go dancing, burlesque, lap dancing, peep show performers
- Modelling – Webcam, pornographic film acting
- Phone operators
- Erotic massage
- Prostitution – brothel work, massage parlour-related prostitution, bar or casino prostitution
- Escort services
- Sexual surrogates
The Case For Legalising Sex Work In Australia
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There are many arguments for and against legalising sex work in Australia. Some fear that legalising sex work will create toxic environments while others find the ability to freely express their sexual desires, whims and wants empowering. One of the most important considerations is that by criminalising sex work, it can create a more dangerous environment for sex workers to operate within, as clients, managers and others can coerce, threaten or blackmail them, and they may fear to reach out to authorities for fear of being punished, either through fines or arrests.
Regardless of opposing ideologies or stances, it is important to understand the laws and legislation regarding prostitution and sex work in your state or territory and to understand the workplace rights and protections that may apply to you. Rather than criminalising an individual’s chosen occupation, it may be a more optimal option to make such work safer for those involved.
If you’re involved in a criminal-related sex work case, contact us today. LY Lawyers are the most trusted criminal lawyers in Sydney and can help prepare you for the best possible legal defence for your case.
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Queensland sex workers face 'daily discrimination' with up to 90pc of industry unprotected by laws
When Hope* booked in for an appointment with her usual GP to get her usual script refilled, she didn't expect to leave the clinic feeling shamed and degraded.
She had been a patient of the same doctor for some time, but what she did for a living had never come up during appointments.
This time, as well as getting a refill for low-dose sleeping medication, which he usually gave her "without batting an eyelid", she also needed something else.
"I said to him 'I also need a sexual health check and a certificate of it to show my work. I'm a sex worker – I need it so I can work in a brothel.'"
Within a split second, Hope said everything changed – his mannerisms, the look in his eye.
"He told me 'you don't seem like you'd do that' or 'you look too smart to be doing that'," she said.
"He became immediately uninterested in having me as a patient. He just gave me a whole big lecture and wanted to harp on about safe sex and misusing drugs."
The GP refused to refill the script she had been taking for months out of concern she might "misuse and abuse" the medication.
Laws force sex workers to 'operate in the shadows'
Hope's experience comes as the largest survey of sex workers in Queensland has revealed more than 70 per cent of workers face "daily and systemic" discrimination and vilification across key areas such as healthcare, housing and banking.
The survey also found there was an "extremely high" rate of unreported discrimination, with 91 per cent of workers choosing not to report their experiences due to barriers in reporting and fears they would face further stigma.
When it comes to healthcare, nearly 60 per cent of sex workers reported discrimination by GPs and doctors.
A further study, led by the Centre for Social Research in Health, found 31 per cent of health workers self-reported they would behave negatively towards sex workers due to their occupation.
The survey of more than 200 workers, conducted by advocacy groups Respect Inc and Decrim Queensland, is part of a submission to the Human Rights Commission to overhaul the state's anti-discrimination act.
In 2020, a nation-wide survey of nearly 650 sex workers run by Australia's peak sex worker organisation, the Scarlet Alliance, and the Centre for Social Research in Health found 96 per cent reported experiencing stigma and discrimination related to their work within the last 12 months.
A further 34 per cent indicated this happened "often" or "always", while 91 per cent reported negative treatment by health workers.
It comes after the state's Attorney-General Shannon Fentiman referred Queensland sex work laws to the law reform commission for review in August last year and requested it recommend a framework for a decriminalised sex work industry in a bid to bring the state in line with "most other states".
Queensland looks set to follow in the path of several states, including Victoria which recently moved to fully decriminalise sex work.
'Hung out to dry'
Respect Inc Queensland coordinator Elena Jeffreys said while her organisation hears concerning stories from workers every week, she was shocked at the findings.
"This is a real problem in Queensland and it's systemic," she said.
"It dials right back to really deep-seated mythologies about sex workers as vectors of diseases and dangerous.
"We have a major problem in Queensland, not just with our treatment but the understanding of who should and shouldn't be protected under anti-discrimination is really offensive and it puts our whole community in really precarious situations."
Some forms of sex work are legal in Queensland but operates under complex laws that are tightly regulated by police, with the majority of workers forced to work illegally due to laws they say leave them unsafe.
This includes contacting a colleague to let them know they are safe after a client leaves a booking.
Queensland is home to just 20 licensed brothels across the entire state – the same number Respect Inc estimate would exist in a single electorate of Sydney.
The rest of the industry, accounting for between 80 and 90 per cent of sex workers, work outside of the licensed brothel sector in workplaces that are not eligible to be licensed or, as independent operators, working alone out of homes and hotels.
The anti-discrimination act uses the term or attribute "lawful sexual behaviour" to describe sex work.
This language excludes the vast majority of sex workers who are forced to use unlawful strategies from making discrimination complaints.
"The bottom line is sex workers are not protected from discrimination in Queensland and that's because the attribute is a barrier," Ms Jeffreys said.
"We basically are hung out to dry."
Advocacy groups have called for this attribute to be changed to "sex work" and "sex worker".
'They only see sex and not the person'
The housing industry is another sector rife with discriminatory practices, the submission found.
One worker told the survey: "The manager of the body corporate threatened to tell the neighbours if I didn't provide sex for free."
Queensland is the only Australian state that gives accommodation providers the power to legally evict sex workers, refuse them accommodation and demand more money if they believe the property is being used to sell sex.
The submission has called for section 106C of the anti-discrimination act, which allows lawful housing discrimination against sex workers, to be repealed.
Under current laws, workers can be discriminated against in roles that include working with children, which has left those studying education locked out of employment.
It is an exclusion Ms Jeffreys described as "beyond offensive" that harked back to age-old misconceptions that sex workers are "inherently dangerous people".
Hope said Australia was still a long way from shaking off old-fashioned stereotypes and damaging stigma.
"They just see the job and not the person. Or they only see sex and not the person," she said.
"This is one thing I do, it's one part of me. I'm also a mum, a sister, a daughter, a really great crochetter.
"There's so many parts to me and people need to see the whole person, not just sex."
The review into Queensland's sex work legislation is expected to be finalised by November, while reforms to anti-discrimination laws will be finalised by June.
The office of the Queensland Human Rights Commission has been contacted for comment.
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