Decriminalisation Since 1995
THE BENEFITS OF DECRIMINALISATION
- We currently have a system of decriminalisation in NSW, which we have had since 1995.
- In May 2016 the NSW government announced that they continue "to support decriminalisation of sex work as the best way of protecting sex workers and maintaining a more transparent sex work industry. You can view the full NSW Government response to the Inquiry on the Regulation of Brothels here Scarlet Alliance, SWOP NSW and Touching Base issued a joint media statement welcoming this decision "WORLD RENOWNED, BEST PRACTICE MODEL OF SEX WORK DECRIMINALISATION TO REMAIN IN NSW"
- Decriminalisation was introduced because of corruption by police and by removing police as regulators has successfully addressed corruption. Police are inappropriate regulators of the sex industry and we are glad they’re out!
- We have a very strong base of evidence and experience that supports decriminalisation as the best model of regulation of the sex industry. We have equally strong evidence of the failure of licensing and registration in other states.
- Decriminalisation is supported by the United Nations as well as Amnesty International and NSW is world renowned for its best- practice model. A move away from decriminalisation is to step back decades in sex worker health and safety.
- Decriminalisation is what sex workers want. The current regulatory system is the best and we do not need a reform to the current system in NSW.
- Decriminalisation has brought improved work safety, high rates of safer sex practice and low rates of sexually transmitted infections and no evidence of organised crime.
- Decriminalisation means sex workers can access support in the event of a crime.
- Decriminalisation means that sex industry businesses are already regulated like other businesses, subject to existing regulatory mechanisms such as local council planning and zoning regulations, WorkCover and the Australian Taxation Office. Suggested improvements would be if these mechanisms were applied fairly and sex industry businesses were actually treated like any other business.
- A decriminalised system amplifies opportunities for outreach, magnifies capacities for peer education, supports sex worker self-determination, maximises compliance, increases transparency and minimises discrimination.
In 2012 sex workers and supporters submitted written material and gave verbal evidence to the NSW Inquiry on sex work regulation, the NSW Inquiry on sex trafficking, and the NSW Inquiry on Local Government and Planning Regulation. In 2013 each of these Government Committees were expected to report. The NSW Inquiry on sex work regulation however never released their results.
MEDIA RELEASE: "NSW Brothel licensing is contrary to United Nations recommendations" 30 Aug 2012 Scarlet Alliance, the Australian Sex Workers Association, opposes the announcement of a licensing body to regulate sex work in New South Wales.
Kirby Institute Opposes Licensing of Sex Work in NSW Link here to download the Kirby Report to the NSW Ministry of Health
"Sydney: International Conference Delegates Urge NSW to Maintain Decriminalisation of Sex Work" 1 Nov 2012 MEDIA RELEASE Experts from a dozen countries, are meeting in Sydney to learn of the gains since decriminalisation of sex work in NSW in 1995, are dismayed at the massive threat to the world-leading law. Open Society Foundations, Scarlet Alliance and Sex Worker Outreach Project have attracted nearly 50 sex workers, community leaders, human rights activists, advocates and politicians from Africa, Asia Pacific, North America and Europe in a four day event planned to take the best of NSWs model to the world. The meeting has collectively expressed its shock that the NSW government would think of removing decriminalisation of sex work through a sex industry law review process. The delegates were unanimous in their call to NSW Government to maintain its world leading and highly successful decriminalisation of sex work.
Zahra Stardust's comments on behalf of Scarlet Alliance at the IPART Roundtable on Licensing in NSWMy name is Zahra Stardust and I am from the Scarlet Alliance, the Australian Sex Workers Association. We are the peak national sex worker association in Australia. In New South Wales, sex work is decriminalised. This is something that is recommended as best practice by the United Nations Secretary General, the UN Population Fund and UNAIDS. It is also recognised by the Australian government national STI strategies and national HIV strategies as best for occupational health and safety and sex workers' access to industrial rights. We are also recognised in New South Wales specifically as having some of the lowest rates of STIs and HIV in the world amongst sex workers in New South Wales.
At the moment, the state government has introduced a plan and intention to introduce licensing of sex work in New South Wales. There is currently a review under the Better Regulations Office. The introduction of licensing in New South Wales would be a public health disaster. There are only risks and no benefits. We have clear and comprehensive evidence from other states in which licensing is in place - for example, Queensland and Victoria - that licensing of sex workers is expensive. It is ineffective. It is unworkable. Licensing imposes unnecessary costs on business and the community. The costs of the licence clearly exceed the benefits. There is no rationale for government action on intervention and licensing is not best practice. For example, in Queensland, licensing has cost the Queensland government over $7 million. Originally it was intended to be self-sustaining, but it is not self-sustaining after 10 years. In fact, after 10 years, only 24 brothels have been licensed in the entire state of Queensland.
The average time it takes to process a brothel application licence is 231 days. 201 towns have banned brothels entirely. The Kirby Institute's recent report in 2012 showed that 90 per cent of the sex industry in Queensland operates entirely outside the licensing regime because it is so onerous. It is not only onerous on businesses, but also upon sex workers.
Sex workers avoid licensing because it might require them to work alone, where they may be prosecuted if they work with somebody else, for example, in Queensland. It reduces your access to support. You might be required to disclose your legal name to the public or your clients, and this has been suggested in the recent WA bill. In Victoria, sex workers under a licensing regime, are subject to forced medical testing with implications of confidentiality and privacy.
Licensing often requires sex workers to work in industrial isolated areas rather than from their own home. Sometimes you may need permanent registration on a police database - for example, in the Northern Territory - and there is obviously a limit to your ability to then travel and have access to justice.
Licensing is not supported by the UN. It is not supported by sex workers and we want to know what recommendations you can make as a tribunal that licensing for sex workers is unnecessary and that it should be not be introduced in New South Wales. All the evidence or the majority of the evidence that we have against licensing of sex work actually comes from government bodies.
We feel that this is the perfect opportunity, and an appropriate opportunity, for the tribunal when we are speaking about what licences are unnecessary and what licensing reform priorities should be in New South Wales, and we believe it would be remiss of the tribunal not to take this opportunity to make clear recommendation against licensing of sex work in New South Wales. Thank you.
The New South Wales Government has publicly stated that they intend to change the laws in NSW. The current model is decriminalisation - lobbied for by sex workers throughout the world as the only model of sex industry regulation that supports sex workers health and safety and human rights. The NSW Government, after lobbying by local government, is posed to introduce a licensing model of regulation instead. We know the serious negative impacts of the licensing model as it has been in place in Victoria and Queensland for many years. It results in very low compliance and leaves the majority of the industry with no option but to operate in the illegal sector. We believe policy and legislation should be evidence based and the evidence shows this will have devastating impacts on sex workers.
The current NSW framework was the result of many drivers for change, not least of which was the Wood Royal Commission and the recognition that in a criminalised environment, brothel operators and sex workers had strong motivation to seek out the protection of organised crime and corrupt law enforcement.
Even more importantly, decriminalisation removed the fear of being reported to police and allowed sex workers better access to the kind of health and information services other workers take for granted.
SWOP Says That More Laws Will Not Make The Sex Industry Safer
NSW's leading health agency for sex workers says calls to introduce new regulations affecting brothel licencing and sex service provision are likely to undermine the health and safety of sex workers and their clients.
The NSW Government announced today it is proceeding with plans to introduce a tougher licencing system for brothels in response to allegations of sex trafficking and criminal involvement in the industry. Some sex industry commentators have also been calling for unprotected sex to be made illegal in NSW brothels to stop clients asking for unsafe sex from sex workers.
However, the Sex Workers Outreach Project (SWOP) says the current system is working well in terms of public health outcomes and the most effective way to protect sex workers and their clients is through education, not regulation. "When NSW's existing regulatory framework was introduced in the wake of the 1990s Wood Royal Commission, it eliminated much of the corruption around the industry that the Commission had identified and significantly improved public health outcomes," says SWOP General Manager Lance Schema.
Peter Hartcher's public comments about the Liberals plan to license brothels in NSW
"If elected, we would be requiring councils in hotspot areas to have more compliance officers, and funding them through the authority...We want them strictly controlled in the interests of public safety."
This is in opposition to the strong public health outcomes of decriminalisation, which leads currently the world as the best model of sex industry regulation. All inquiries by the Brothels Taskforce have found that licensing has been a failure in Queensland and Victoria, is costly, has low compliance and bad occupational health and safety outcomes for sex workers.
Scarlet Alliance and Nothing About Us Without Us Responds
(link here to download full submissionDecriminalisation is a model of regulation that at its essence recognises that Sex Industry businesses must be regulated like other businesses. Decriminalisation recognises that it is unnecessary to develop a set of additional laws to regulate the Sex Industry as existing regulatory approaches (local government, WorkCover etc) and existing laws (Criminal Code and Police Act) regulate a wide range of factors across society and all industries. This model removes barriers to effective HIV prevention and is in this way a best practice model to regulating the sex industry.
Ban Ki Moon opposes Licensing
“I urge all countries to remove punitive laws, policies and practices that hamper the AIDS response… Successful AIDS responses do not punish people; they protect them…We must ensure that AIDS responses are based on evidence, not ideology, and reach those most in need and most affected.” Ban Ki-moon, Secretary General United Nations, World AIDS Day, 2009 Australia has been recognised internationally as a leader in this regard.
A summary of the Brothels Legislation Amendment Act 2007
The Brothels Legislation Amendment Act 2007 gave local councils more power to identify and close down unauthorised and “illegal” brothels, and to close down approved or legal premises where there are amenity complaints.
Sex services premises have been decriminalised, and have been able to operate like any other legitimate business in NSW for 12 years. There are sex services premises of one form or another in every local government area in NSW. The industry is regulated by local councils (planning and location controls, environmental health), WorkCover NSW (occupational health and safety) and NSW Health (public health).
Sex services premises include:
- Commercial sex services premises (brothels)
- Massage parlours providing sex services, such as hand relief
- Private Sex Workers working from residential premises
A local council’s Local Environment Plan (LEP) is the planning policy which defines land uses and regulates options for a sex services premises to be:
- Development that does not need consent and is "legal" as exempt or complying development;
- Development that needs consent and can be approved in that zone and location; or
- Development that is prohibited, therefore “illegal” as the use is not permissible in the zone and location so can not be authorised or considered to be complying development.
SWOP NSW provides services to around 850 sex services premises across NSW. Due, in part, to the lack of appropriate local council planning policies, less than 15% (125)1 of these premises have gained development consent. Many authorised brothels were initially refused consent by council, and had to go through a costly appeal at the Land and Environment Court. This has acted as a disincentive to other operators. Most premises remain unauthorised or illegal, because the majority of councils have not adopted reasonable planning controls. (For more information see "Unfinished Business" at www.swop.org.au and the Sex Services Premises Planning Guidelines.
Summary of the new laws
It is important to note that the new brothel closure order and utilities laws don’t apply to places with one sex worker. An individual sex worker in a premise (rented or home), will not be impacted by the brothel closure orders. These premises can, however, still be closed by the “normal” council orders if they are unauthorised or illegal, or if they cause amenity impacts and complaints are made. In this case, the new circumstantial evidence rules apply to all proceedings in relation to sex services premises of any size or type.
The new laws give local councils more power to identify and shut down unauthorised and “illegal” brothels, except where there is only one sex worker working at the premise. They also widen the scope for amenity based complaints to be made against authorised or legal premises. You can read the Act and the debate recorded in Hansard at: www.legislation.nsw.gov.au.
The Brothels Legislation Amendment Act 2007 amends two pieces of law which are then cross-referenced.
The Restricted Premises Act, 1943 (RPA Act), (formerly called the Disorderly Houses Amendment Act 1995), is amended at Schedule 2 as follows:
- the definition of a brothel includes premises advertised as providing sex services (prostitution)
- one amenity complaint may be sufficient to trigger an Order, except for places where only one sex worker works;
- a definition of related sex services is provided;
- an order to suspend or vary the operation of development consent (a DA) for up to 6 months is enabled; and
- a wider range of persons are able to make an amenity complaint.
The definition of a brothel now includes premises which have been expressly or implicitly advertised or represented as being used for the purposes of prostitution. Advertising may be signage, in or on the premises, newspapers, directories, the internet or other means.
A brothel closure order can be used to close legal premises , including those with Development Consent, where the premise has been the subject of an amenity-based complaint and where the council is satisfied the complaint is warranted.
Local councils may make an application for an order if one or more amenity complaints are made by persons who work, or use facilities in the vicinity, or their children use facilities in the vicinity
Related sex uses can be specifically disallowed after the Land and Environment Court has ordered a brothel to cease operating. Related sex uses is defined to mean sexual acts or sexual services in exchange for payment, or massage (other than therapeutic massage) or adult entertainment involving nudity, indecent acts or sexual activity in exchange for payment, or if provided with other goods or services. This law prevents a business ceasing the brothel use, but transforming into a related unauthorised use.
The Environmental Planning and Assessment Act 1979 (EP&A Act) is amended at Schedule1 as follows:
- powers are provided enabling brothel closure orders
- brothel closure orders are created, and are able to be served on a range of people, including the owner of the premises, operator or persons involved in managing a brothel
- the definition of a brothel is expanded to include premises advertised as providing sex services (prostitution)
- a new definition of related sex uses is introduced
- These orders can be used against unauthorised or “illegal” sex services premises, but specifically are NOT to be used where there is only one sex worker.
Schedule 1 of the Act relates to the powers available to councils under the EP&A Act, and enables special brothel closure orders.
The definition of a brothel is expanded to include premises that have been advertised, or represented to be used for prostitution, and are likely to be used for the purposes of prostitution again.
Due to the definition in this amendment, a brothel closure order can not be made on a premise with only one sex worker or person. Under this amendment the definition of a brothel is stated to mean “a brothel within the meaning of the Restricted Premises Act 1943, other than premises used or likely to be used for the purposes of prostitution by no more than one prostitute”.
An order can close a brothel, and also disallow related sex uses following the closure for up to 6 months. Orders commence in not less than 5 working days.
Under the Restricted Premises Act, orders for ceasing the use, or suspending or varying the consent on a DA can be made for a maximum of 6 months
Brothels with more than 1 worker, including massage parlours, or premises where sex services are advertised to be available or provided, may be closed after one amenity complaint, or if found to be unauthorised or illegal.
Local councils may issue an order if one or more complaints are made by persons who work, or use facilities in the vicinity, or their children use facilities in the vicinity.
Council authorities and other regulatory authorities authorised by the Minister for Planning can issue an order.
Brothels closure orders can be given without Natural Justice requirements, so there is no notice period required for a proposed order, and no opportunity to defend oneself against the reasons for closure before the order is issued. Any defence can only be made through an appeal at Court after the order has been given, and lodged within the 5 working days before the order commences.
Although development approval applications can be made, adjournment of a closure order can not be made, once an order is issued, except in exceptional circumstances.
Orders can be made against a person in control or managing, or assisting in managing a brothel. If a person fails to comply with a brothel closure order, it is an offence (thus re-criminalising the sex industry), and a second offence is more serious (“aggravated”) and may be considered in sentencing.
Failure to comply with a brothels closure order may include enforcement by creating a utilities order directing a water, gas, or electricity provider to cease providing services. Local Courts or the LEC can make a utilities order if a brothel closure order is not complied with. A utilities order can only last 3 months. Utilities orders are not to be made on residential premises.
The court may rely on circumstantial evidence of the use as a brothel, not direct evidence. Evidence includes advertising of sex related or prostitution services. For examples of circumstantial evidence of the use as a brothel see: www.legislation.nsw.gov.au, Restricted Premises Act 1943, Section 17A
If you require more information about working in the NSW sex industry, or operating a sex industry business in NSW please call the Sex Workers Outreach Project (SWOP) on Tel: (02) 9319 4866 or email to: firstname.lastname@example.org
Disclaimer - July 2007 This document is presented for the purposes of providing information, and is not a substitute for independent professional legal advice. Nothing contained in this document is intended as a substitute for your own legal professional’s advice. ACON and SWOP do not accept any liability for any illness, loss or damage incurred by use of, or reliance upon, the information in this article. Persons using this article should carefully evaluate its accuracy, currency, completeness and relevance for their purposes, and should obtain any appropriate professional advice relevant to their particular circumstances. ACON and SWOP cannot guarantee and assumes no legal liability or responsibility for the accuracy, currency or completeness of the information.
ANALYSIS OF THE NSW BROTHEL CLOSURE LAWS passed in 2007
The brothel closure laws were passed in New South Wales Parliament in July 2007.
A decade ago when the New South Wales sex industry was decriminalised, it was the intention of the Parliament for New South Wales sex workers and sex work workplaces to be treated with the same rights and responsibilities as any other business. However fair and just regulation has been stymied at a local council level, and the delicately written and politically unifying Sex Services Premises Planning Guidelines (available from Planning NSW) aimed at finally rectifying the Local Council blockages, has not gained practical "buy in" from any level of government, academic institutions or community organisations in any meaningful way.
Prior to the 2007 NSW Election the media landscape was dominated by the Adult Business Association, who have been calling for increased penalties for non-compliant brothels, during which time they publicly released a list of 775 alleged non-compliant premises. Their members have campaigned to have non-compliant brothels closed down, including lodging complaints with local councils and lobbying for stronger penalties and criminalisation of non-compliant activity. Under current law this non-compliant activity is not criminal, however it is in breach of local council planning requirements.
Decriminalisation eliminated the role of police in the regulation of sex work in New South Wales. However the newly delegated role of Local Council as the regulators of the industry has had a rocky road to forge. Local Councils that took progressive and practical approaches, including South Sydney Council, faced harsh criticism in the mainstream media and substantial political backlash from misinformed voters who feared an increase in brothels and sex workers in their areas. Local Councils that took an anti-sex work stance won media and community support. Anti-sex work rhetoric during the last ten years has proved itself as a vote grabber and media winner.
The Premier Morris Iemma, cognisant of these potential political outcomes, on the 12th of February 2007, promised: Introduction of a range of new measures to detect, prosecute and shut down illegal brothels... Increase powers and target illegal brothel operators who attempt to circumvent criminal laws and planning regulations.” and "We will empower local courts to issue interim orders, cutting the electricity, gas and water supplies to suspected illegal brothels.....We'll also target the repeat offenders who, when caught in one location often pay their fines then relocate their filthy trade to a new suburb." Since that time the Parliamentary Counsel Office, directed by the Premiers Office, has written legislation to this effect, which is now sitting with the Department of Planning for approval and/or endorsement. Such legislation will have a drastic effect on the social and economic wellbeing of sex workers, and will certainly have the effect of driving large sectors of the sex industry "underground" and away from support services including WorkCover and HIV and STI peer health education.
There are important processes running parallel to the apparent backslide of sex industry rights in New South Wales. The Independent Commission Against Corruption will likely report that the Local Council regulation of the sex industry has resulted in increased potential for corruption. The Sex Service Premises Planning Guidelines, are a world standard and international first in sex industry planning. However the Premiers Office prefers to be directed by the sway of public opinion and media column inches, and has pushed ahead with criminalisation of non-compliant sex industry premises, early in his term. The proposed bill was tabled on the 25th of June 2007, voted on a week later, and contains provisions to allow Councils power to close sex industry premises, and increases potential corruption in all aspects of sex industry regulation.
Updated 10 May 2016