Decriminalisation Since 1995
THE BENEFITS OF DECRIMINALISATION
- In NSW the sex industry is largely regulated through a decriminalised model.
- 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. In other jurisdictions, and in NSW before the decriminalisation model was introduced, evidence has demonstrated police are inappropriate regulators of the sex industry.
Laws relating to Age of ConsentLegal Age for sex workers according to the law
According to NSW law, anyone over 18 may provide sexual services to a person over the age of consent in exchange for money, goods or favours.
No one may employ a person under 18 as a sex worker under NSW law. The law defines a person under 18 as a child. It is a serious crime to:
-force a someone under 18 to participate in sex work -benefit from sex work involving someone/ or people under the age of 18 and/or -allow premises to be used for someone under the age of 18 to do sex work from
If a sex worker is under 18 years old, they themselves cannot be charged as they are not committing an offence by working, only the person who employs them is. But Police and the Department of Community Services (DoCS) can use child protection laws to make rulings about people who are under 18 who they "believe are at risk of harm."
The clients of sex workers who are under 18 can face serious criminal offences.
The legal age for a client according to the law Clients must be over 16. But someone under 18 cannot enter a sex services premises or ‘brothel’. SWOP recommends that, for their own protection, sex workers should be cautious and only accept clients who are 18 or older.
Where you work fromStreet sex work is lawful as long as it is not near or within view of a school, church, hospital or dwelling[ A dwelling is definied as any home or residence not attached to a shop or commercial premises]
‘Brothels’ [refered to as
sex services premises in the law] are regulated by local councils, just like other businesses.
The definition of a brothel or sex services premises In NSW, the law defines a brothel (sex services premises) very broadly. They are premises that:
are used for prostitution (sex work) or have been used for prostitution and are likely to be used for it again or have been advertised or represented as being used for prostitution, and are likely to be used for prostitution. If sexual services are advertised or available in a premises it is legally defined as a brothel—no matter what the business is set up for, and even if the premises is only used by one sex worker.
Sex services premises have been decriminalised, and have been able to operate like any other legitimate business in NSW for since 1995. 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 laws regarding local council powers
It is important to note that the brothel closure order and utilities laws introduced in 2007 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 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 Schedule 1 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) 9206 2166; Freecall: 1800 622 902 or email to: firstname.lastname@example.org
SWOP NSW Website is http://www.swop.org.au/contact-us (open in new window)
Updated 10 May 2016