The troubling push for full decriminalisation of the sex industry around Australia
Prostitution in and of itself is not criminalised anywhere in Australia. However, some prostitution-related activities, such as brothel-keeping, or street solicitation are prohibited in some states and territories, although often tolerated informally (see here for state by state regulations). Australian states and territories each approach prostitution from different legislative models, however, the majority of states and territories have either legalised or decriminalised prostitution.
CATWA holds the position that prostituted people should never be criminalised but those who profit from them, i.e. pimps, brothel owners and sex buyers, should be held accountable. Australia has been criticised for failing to comply with international treaties such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the Palermo Protocol that call on governments to suppress the exploitation of prostitution by targeting the demand.
Full decriminalisation of the sex industry is often held up as best practice for making the sex industry safe for women. There are currently moves in multiple states and territories for the implementation of this model.
In its purest form, a fully decriminalised sex industry means that there are no specific laws pertaining to the industry. Sex industry businesses are subject to the same laws and regulations as any other business. This is the same across all sectors, including brothels, street work, massage parlours and escort services. However, some decriminalised models retain a specific act of legislation addressing the sex industry. This is usually justified as part of a ‘harm minimisation’ approach to the industry and is designed to decriminalise prostitution, but ensure specific—and minimal—safeguards. The New Zealand legislation is a clear example of this approach.
The argument is that by treating prostitution as a business like any other, full decriminalisation will lead to a reduction in stigma for those working in the industry, and that safer working conditions would be enforced (as in any other industry). The reality is far less positive.
New South Wales (since 1995), New Zealand (since 2003) and the Northern Territory (since 2019) are the only three jurisdictions in the world where full decriminalisation has been implemented. Women who have worked under these systems have spoken out about the failings of decriminalisation to protect them, with conditions even worsening. Reports from these jurisdictions point to ongoing concerns around violence in the industry, trafficking, health and safety, organised crime and human rights abuses.
For these reasons, CATWA is concerned that there have been recent campaigns in multiple states and territories in Australia to move to a fully decriminalised system. Further information regarding this push for decriminalisation is outlined below.
New South Wales (Decriminalised)
Alongside New Zealand and the Northern Territory, New South Wales (NSW) is one of only three jurisdictions globally that have fully decriminalised the sex industry.
In NSW, decriminalisation has been implemented since 1995, with local council planning regulations the only limitations placed on brothels, specifically. NSW is often held up as an example of the ‘success’ of decriminalisation.
However, the NSW system of deregulation places significant pressure on local councils to enforce planning restrictions; a task that they often do not have the resources to complete effectively. The lack of oversight of the industry means that a substantial portion operates ‘underground’, outside of the official planning processes. This fact has been highlighted by government inquiries in NSW, which point to the links between this lack of oversight and the ability for organised crime to flourish, with negative consequences in terms of human trafficking, health and safety, violence and labour rights violations.
Northern Territory (Decriminalised)
Prior to 2019, brothel and street prostitution were illegal in the Northern Territory. Escort agencies were legal and had to be licensed with the Northern Territory (NT) Licensing Commission. Sole operators were legal but had to register with the police. In 2014 momentum gathered for a review and the decriminalisation of the industry because of the rapid increase in illegal brothels. This was driven by the Darwin branch of SWOP (Sex Worker Outreach Project). The manager of SWOP NT had stood unsuccessfully as a Sex Party candidate at the 2012 territory election and the 2013 federal election.
The Sex Industry Act 2019 decriminalises all forms of prostitution in the NT. There is no offence listed for soliciting, so street prostitution is not illegal. Prior to this legislation, brothel and street prostitution were illegal and only sole operators and escort agencies were allowed and had to register with the police. There were many illegal brothels operating under the guise of massage parlours.
If a sex services business engages 3 or more sex workers, each operator of the business must hold a suitability certificate, which is issued by the Commissioner for Consumer Affairs.
The legislation views the interaction between sex worker and client as a contract. However, it states that a person may at any time refuse to perform or continue to perform sex work. It then goes on to say that nothing in the legislation affects any right to recover damages for a contract for sex work that is not performed. This means that the sex worker could be liable.
The legislation makes no mention of indigenous women who are particularly vulnerable to exploitation through prostitution.
A Review Committee is to be established and its first task is to assess the number of sex workers in the territory and the environments in which they work.
The report from the Inquiry into the Sex Industry Bill 2019 gives some useful background information.
In November 2019 the Andrews Labor Government announced it would conduct a Review Into the Decriminalisation Of Sex Work, which is now underway. While CATWA commends the Victorian Government for launching a review into the broken system of legalised brothel prostitution in Victoria, the review raises several concerns.
It is not clear why full decriminalisation has been selected over other models of prostitution legislation. A thorough and impartial review should consider various models of prostitution legislation, including the Nordic Model, rather than preselecting the model to be implemented. There has been no transparency on how it was decided, and by whom, that full decriminalisation is the right model for Victoria.
The review is being led by Fiona Patten MP, leader of the Reason Party (formerly the Sex Party). Patten has links to organisations that have a vested interest in deregulation of prostitution, and her appointment represents a clear conflict of interest. Indeed, on the announcement of her role in the review Patten tweeted #SexWorkIsRealWork, ignoring survivors who say that prostitution is neither sex nor work, and pre-empting the conclusion of her own review.
The review website states that Patten and her team will consult with ‘key stakeholders’ to ensure ‘all aspects of decriminalisation are considered and alternative views are heard’. However, a number of feminist and prostitution survivor groups, including women with experience of working in the sex industry under decriminalised models, such as in New Zealand, have been excluded from the review consultation. The exclusion of survivor groups from the review adds to concerns outlined in our media release that there is a clear conflict of interest in having Patten, a long-time proponent of the full decriminalisation of the sex industry, lead a review into decriminalising the sex industry. Patten is set to provide her recommendations to the government before the end of 2020. It will be a surprise to no one when a ‘tireless advocate’ for full decriminalisation recommends the government adopt full decriminalisation.
Since the scandal of the Fitzgerald Inquiry, the Queensland government has been wary of encouraging organised crime in the sex industry. There have been 2 reviews into the sex industry by the Queensland Law Reform Commission (2004, 2006) and each time it was reluctant to advocate full decriminalisation.
Pro-sex industry lobbyists such as DecrimQld and the Scarlet Alliance are currently pushing the Attorney General, Yvette D’Ath, for a further review by the Queensland Law Reform Commission citing the decriminalisation laws in other states such as NSW.
At present, there are only 20 licensed brothels. These brothels are only permitted to have a maximum of 5 rooms and a staff of 13. There are no mega brothels, and brothel owners are not permitted to own more than one brothel.
Chapter 22A of the Prostitution Act of 1999 forbids a prostituted person to work in conjunction with another person unless employed in a brothel.
This law has been used by DecrimQld and Scarlet Alliance as the main focus of their campaign for decriminalisation. They argue that being forced to work alone makes conditions less safe. However, these questions of safety highlight the extent to which prostitution is not ‘a job like any other’. High rates of sexual violence and physical assault in the sex industry emphasise the extent to which violence is endemic within the industry.
Australian Capital Territory (Legalised)
The relevant legislation in the Australian Capital Territory (ACT) is the Sex Work Act (1992). This was originally known as the Prostitution Act 1992 and was renamed through the Prostitution Amendment Act 2018. The main changes were in the language, for example, the term prostitution was replaced with sex work.
The ACT police have expressed concerns over the extent of sex trafficking into illegal brothel in Canberra. As yet, the full decriminalisation of prostitution has not been considered in the ACT.
South Australia (Hybrid)
There have been repeated efforts in South Australia to decriminalise the sex industry. In 2018, a private member’s bill was co-sponsored by Attorney-General Vickie Chapman and Greens MP Tammy Franks, calling for the full decriminalisation of prostitution; the 13th attempt to change prostitution legislation in South Australian history.
While the act of soliciting prostitution and living on the earnings from prostitution (e.g., owning a brothel) is illegal in South Australia, prostitution itself is not. The bill was proposed to overturn these aspects of the sex industry that are currently illegal.
The bid to decriminalise prostitution in South Australia proposed by Attorney-General Chapman and Ms Franks was subsequently defeated, 24 to 19, in a conscience vote of all MPs.
In relation to the defeat of the bill, Labor MP Claire Scriven stated that, “the defeat of this bill says that women will not be commodities, we will not buy and sell women and we will not protect the pimps”.
Western Australia (Hybrid)
In Western Australia, while brothels are illegal, as is living off the earnings of prostitution, it is not illegal to sell sex.
In recent years, Western Australia has seen several pushes to decriminalise the sex industry, with NSW once again being held up as the exemplar of decriminalisation. The last of these pushes was made in 2017. Stigma and discrimination were held up as key areas in which decriminalisation could make a positive impact, as well as bringing a greater focus on health and safety.
Yet, this seems at odds with what we know about the industry in NSW and New Zealand, as touched on briefly above.
Research also shows that even in legalised and decriminalised systems across the eastern seaboard of Australia, male buyers show disdain for the women they purchase access to, with violent, misogynistic and objectifying attitudes rife among those who use the industry. It is therefore hard to see how decriminalisation might reduce stigma and discrimination against these women.
The Sex Industry Offences Act 2005 states that prostitution is legal in Tasmania, but operating brothels and street prostitution are illegal.
While reviews of prostitution legislation have been conducted in 2008 and 2012, as yet, the full decriminalisation of prostitution has not been considered.