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Sex Industry Laws in Australian Capital Territory

Legal Situation in the ACT for Sex Work

Below is an explanation of the laws described in the ACT's Prostitution Act 1992.

ACT Sex Worker Organisation

SWOP ACT is a project of AIDS ACTION ACT- and is the ACT's peer sex worker run organisational member or Scarlet Alliance

ACT LAW:

Private Work

It is not an offence to work as a sex worker from your own home as a sex worker. The law currently stipulates that private workers should work alone.

Private workers are also called sole operator brothels or escorts and can operate legally under the Prostitution Act, and register with the Department of Fair Trading in the same way as Brothels and Escort Agencies. Registration is requested to be done one week prior to commencement of work. This incurs a fee which is payable once a year. The laws says the registrar cannot make the name and the address of the Sole Operator available for public inspection, but the record may be made accessible to police during an investigation or to a public servant in the course of their duties, eg the ATO, Police and others (S11.5 and 11.6 of the Act).

If you have any concerns about registration, or want to talk in more detail about the registrar and/or other details of laws affecting sex workers in the ACT, please contact our member organisation in the ACT SWOP ACT

Private workers are prevented by law from sharing work premises, although there is no restriction as to the location from which they can work. There is no problem (as far as law is concerned) if the private workers use two separate apartments in the same complex, adjacent townhouses or two separate hotel rooms.

Street Based Sex Work

In the ACT, street sex work is criminalised, and workers may be arrested for soliciting or loitering for extended periods for the purpose of prostitution. Section 19: "A person must not, for the purpose of offering or procuring commercial sexual services, accost any person, or solicit or loiter, in a public place." (20 penalty units)

The Police Offences Ordinance 1930 states "persistently soliciting or importuning for an immoral purpose in a public place" as a crime under s.23".

Brothels/Studios/Agencies Registration

The Prostitution Act 1992 asks brothels, private workers and escort agencies to register with the Registrar of Brothels and Escort Agencies. The registrar operates from the Department of Fair Trading, however is constituted by The Prostitution Act 1992 and has special powers. The Registrar enforces regulations but can only fine non-compliance with 10 penalty points or less. There are criminal penalties related to non-compliance with registration, for example failure to report annually to the Registrar is punishable by 1 year in prison (S13.1) Brothel registration information is available to the public. (More details below)

Criminalisation of sex workers living with HIV + STIs

Brothel owners must take "reasonable steps" to ensure that no-one works for them while infected with an STI. This is interpreted by most owners to mean that if they make sure all workers have regular medical tests then they are taking reasonable steps. Brothel owners are legally instructed to take steps to prevent sex workers with STI’s from working, (S24, penalty for non-compliance, 1 year imprisonment).

Workers can be charged in the ACT for knowingly working with an STI or while living with HIV- either privately or at a brothel, (This is punishable by 6 months imprisonment under S25.)

The exact wording in the law says that sex workers are not allowed to work at a brothel or otherwise (i.e. privately) if we know, "or could reasonably be expected to know" that we are "infected with a sexually transmissible infection."

STIs are defined under the Sexually Transmitted Diseases ACT 1956.

Hep C is not listed as an STI (so it is not illegal to work while living with Hepatitis C)

Medical Tests

It is illegal for a sex worker to use the results of a medical test, or the fact of having had a medical test, or to show a client an attendance certificate, to imply that a worker tested negative to STIs. It is also against the law for a sex worker to make reference to a test or test results and be "reckless about" whether another person believes that the sex worker tested negative to a STI. (s26.2)

If owners and workers don’t take the precaution of STI tests, or lie about having a test, or lie about not-having an STI, they could face a fine. (S26)

Condoms + Prophylactics Use and the Law

In Brothels...
Brothel Owners must take all reasonable steps to make sure workers are using condoms. Usually owners provide condoms to workers.

Brothel owners must not discourage the use of condoms.

For all sex work in the ACT
Condoms must be used for all penetrative sex of any kind, (oral, anal and vaginal) Dental dams are not mentioned under the act.

It is illegal to perform penetrative sex without a condom, for both the worker and the client. If the client interferes with or tries to remove the prophylactic during sexual intercourse they may be charged.

Owners discouraging use of prophylactics (including Dams), and workers working without prophylactics (including Dams) are committing an offence and can be fined (s27). If a client interferes with a prophylactic they can also face a fine (s.27.4)

It is an offence for a client to (a) misuse, damage or interfere with the efficacy of any prophylactic used; or (b) continue to use a prophylactic that he or she knows, or could reasonably be expected to know, is damaged.

OTHER LAWS

Sex Work and laws relating to age

It is an offence to procure or hire a person for the purpose of sex work if the person is under the age of 18. (S.20, penalty 10 years imprisonment, or up to 15 if the child is under 12 years). However, believing that the person was over 18 is a defence (S.22) provided the accused took reasonable steps to determine the age of the child. For example if the person had fake ID.

Brothel Work is legal

In the ACT there are no specific offences punishing those who work as sex workers in brothels. However, sex workers can be charged with criminal offences if they assist in management or permitting the premises to be used for sex work.

Other limits on Brothels

There is no limit to the number of rooms in a brothel, and no probity investigations conducted as part of the regulation process. However, like other licensing regimes such as Queensland and Victoria, all owners and interested persons must obtain a police report to ensure they have not been convicted of a disqualifying offence. These include assault, sexual assault, paedophilia, offences against the Prostitution Act and miscellaneous others. (see Section 6, Schedule 2 and Schedule 3 of the Act)

Brothel location is restricted

Brothels are restricted to operating only in the areas of Mitchell and Fyshwich. (Penalty is one year imprisonment, S18.1 of the Act.)

LAW REFORM: Sex Industry Laws were reviewed in 2011.

ACT Government to Review Sex Worker Laws, July 2017

Recommended legislative changes include -
- allow up to two sex workers to work from a hotel room or residential address (to better support work health safety)
-remove criminalisation of sex workers living with HIV and STIs

General Discussion Points

The legislation dealing with sex work cannot be separated from its practice. It is perhaps this area where most confusion occurs: the biggest issue being the difference between the intent of the legislation and its practices. As with the legislation, police policy on sex work varies between jurisdictions. In the ACT the police policy is one of ‘containment and control’. Although most aspects of sex work are illegal, the police allow the continuation of some form of sex work. The criminal penalties against brothel and private workers are not enacted by the police.

Brothels and massage parlours offering sexual services are illegal in the ACT, although police allow their existence, provided they abide by the “containment and control” system. The police surveillance of brothels limits the number of operations and their locations.

The policy of ‘containment and control’ seems to be effective and not cause any major difficulties. Sex worker collective representatives in the ACT generally agree the police don't usually harass sex workers.

The disadvantage of this legislation is that it does nothing to assist the rights of sex workers or improve the standards of our working conditions. Sex workers in the ACT have accessed both the Equal Opportunity Commission and the Industrial Relations Commission, albeit not always successfully. In the 1990s a sex worker took the newspaper to the Equal Opportunity Commission to demand that advertising rates for sex workers were equalised to that of other professions, but the case failed.

Information collected from private workers and brothel owners is frequently shared between Government Departments and is in not ways secure.

The commissioner maintains a register of information provided by operators of brothels and escort agencies as per the law. The commissioner is not legally required to include or keep in the register information about a brothel or escort agency that has ceased to operate. (However this doesn't mean the information is removed or deleted either)

According to the law, the commissioner must make information in the register available for public inspection. However, the commissioner must not make the names or addresses of sole operators available for public inspection.

The law does not prevent inspection of names or addresses of sole operators by an authorised person; it only says that inspecting these details such as names or address requires the commissioner to be "satisfied that the person wishes to inspect them in the exercise of the person’s functions."

MEDIA + OTHER READING MATERIAL:

"...sex workers who need information, assistance or support encouraged to contact Sex Worker Outreach Program's education officer Lexxie Jury" Media-Canberra Times, 2016

Scarlet Alliance Submission to the Standing Committee on Justice and Community Safety’s inquiry into the ACT Prostitution Act 1992.

ABC NEWS: Sex trade laws under review for the first time in 18 years, 1 Oct 2009

  • Prostitution Act 1992, Republished: 14 December 2006
  • Contact SWOP ACT
  • SCARLET ALLIANCE DEMANDS CHANGES TO THE ACT LAWS FOR SEX WORKERS WITH HIV



    Calls for changes to ACT Prostitution Act, ABC - September 7, 2008

    "Prostitutes afraid to check for HIV" NATASHA RUDRA, Canberra Times 5 Sept 2008

    Download the full report "Needs Assessment of Sex Workers with HIV", 1.98meg

    SWOP ACT: Scarlet Alliance Member Organisation based in Canberra, ACT

    (Peer sex worker project) For up to date contact information see: http://aidsaction.org.au/aids-action-council-services/swop.html

    You are welcome to drop in for a cuppa and con­fidential chat with a SWOP worker 9:30am – 5:00pm Tuesday – Friday. Calling ahead is recommended to ensure a SWOP worker is available.

    Outreach is a free service to all workers and studios in the ACT. SWOP ACT does outreach to ensure all workers have access to information about their health and rights. Low cost safe sex products and safe injecting equipment is available. Outreach to studios once a month on Thursday and Friday evenings from 7:00pm – Midnight. Contact for upcoming outreach dates. SWOP is always available to visit private workers, please contact to make a booking.

    Low cost condoms, lube, and other safe sex products are available. Drop by 9:00am to 5:00pm Monday – Thursday and 9:00 to 4:00pm Friday. Cash and card facilities available. The SWOP ACT at Havelock House is a secondary NSP (needle and syringe program). A range of safe injecting and disposal equipment is available. Click here to be taken to SWOP ACT's website for more details

    Updated 16 Julyl 2017