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Sex Industry Laws - South Australia

MP Steph Key has announced the Statutes Amendment (Sex Work Reform) Bill will be again in front of South Australian Parliament next week.

After a narrow defeat last year, sex work law reform legislation in South Australia will be represented to Parliament in late March 2013.

BROTHEL owners would have to register their business with a government agency as part of the latest push to decriminalise prostitution. Labor backbencher Steph Key will introduce new laws to Parliament next week to decriminalise all forms of sex work, after a previous attempt was rejected by one vote in November. The new Bill, based on a New Zealand model, would require owners of brothels to register their business with Consumer and Business Services.

Useful links regarding law reform:

The laws

The laws surrounding sex work in South Australia are contained in the Summary Offences Act (1953) and the Criminal Law Consolidation Act (1935-1976). Apart from some very minor changes, most of these laws have remained intact since they were first enacted, some more than 50 years ago. Several new laws were enacted in 2000 that deal with ‘ sex slavery ’, minors involved in commercial sexual services and the deceptive recruitment of staff to provide commercial sexual services.

The act of commercial sex itself is not illegal in South Australia but there are a raft of laws that pertain to commercial sex that occurs in a brothel effectively rendering brothel based sex work activities illicit. Traditionally brothels have made up a substantial proportion of sex industry businesses because brothels are the preferred mode of working and organising commercial sexual services. South Australian law, therefore, contains a range of offences that aim to suppress the sex work that occurs in brothels.

The offences

These offences range from the most commonly used offences against sex workers; Section 21: [b] of the Summary Offences Act that effectively makes it illegal to be on a premises frequented by prostitutes without a reasonable excuse; Section 28 [b] of the Summary Offences Act which is the main charge that has been used in relation to sex work itself and charges sex workers with ".....receive money paid in a brothel in respect of prostitution"; through to offences for "keeping" or managing or assisting to manage a brothel (Section 28 [1] [a],[2]), procuring a person to become a prostitute (The Summary Offences Amendment Act 1953; Section 25A), living on the earnings of prostitution ( Section 26:[1] of the Summary Offences Act 1953) and keeping a ...common bawdy-house (The Criminal Law Consolidation Act Section 270 [1] [b]). All of these laws are clearly aimed at the organisers and those associated with sex work, however, sex workers can be and have been charged under these laws. Additionally, there are several laws that target landlords and tenants who permit their premises to be used as a brothel. These offences are contained in Section 29 [a], [b] and section 31 [1],[2],[3],[4] of The Summary Offences Act.

Definition of Brothel

The definition of a brothel is pivotal to enforcement of most of the above charges, because law enforcers must prove that the alleged offence occurred in a brothel, or, indeed that a premises is a brothel. The definition contained in the Summary Offences Act (1953) Section 27 states that; 'brothels means premises- (a) to which persons resort to for the purposes of prostitution or (b) occupied or used for the purposes of prostitution (premises includes a part of premises)

This definition is quite broad and could even, for example, be used to encompass an escort agency office/premises if it were to openly operate and admit to providing commercial sexual services rather than escort services. However, while escort agencies continue to maintain that they only provide "company" for clients, it is difficult for law enforcers to prove otherwise and thus brothels are usually premises where commercial sex takes place at that location on a regular or consistent basis.

A client’s home is not considered to be a brothel even if a client uses sex work services at their residence regularly. The same applies to hotels/motels under normal circumstances. Occasionally, however, when rooms have been let out on a regular basis for the purpose of commercial sex, hotel proprietors/managers have been charged with keeping a brothel.

A sex worker’s own home may be defined as a brothel and she/he may be charged with keeping a brothel even if the private sex worker is the only person working from the premises. Advertising usually alerts the police to suburban sex workers working discreetly from residential settings even if neighbours and surrounding residences are not aware of the existence and/or nature of their neighbour’s home based business.

The definition of sex work

The definition of what constitutes sex work is also very broad. The Summary Offences Act (1953) states that "prostitutes are persons offering themselves as participants for reward in a physical act of indecently for the sexual gratification of another". A 1996 court appeal ruled that a nude, Thai massage (a euphemism for a body to body massage or body slide) was intended to provide lewd or sexual gratification and was therefore an act of prostitution. Therefore over the years, massage workers have regularly been charged with a range sex work offences. In summary, the laws pertaining to sex work mainly relate to brothel based sex work although offences such as procuring and living on the earnings can be applied in other sex industry contexts such as escort or visiting services. In practice, these laws are usually applied to sex industry businesses that can be determined to be brothels whether or not they operate overtly as brothels or as masked businesses such as massage studios.

Escort

Escort based sex work, although a more modern context for sex industry work, has flourished in light of the prohibitive brothel based sex industry laws. Escort agencies also operate as masked businesses, in that operators maintain that they provide staff for the company of clients rather than for sexual services because the latter could leave operators open to the sex industry related charges of "living off the earnings" and "procuring" a person to become a sex worker.

Street based

Street based sex work has been a minor feature of the sex industry in South Australia and has been so for many years despite being a historically favoured mode of sex working across many cultures and throughout history. The Summary Offences Act section 25 [a], [b] makes it illegal “to solicit or loiter in a public place for the purpose of prostitution”. This law was amended some years ago and is the only sex work law which is equally applicable to clients and as it is to sex workers. The reality is though that clients are rarely, if ever, charged with soliciting offences.

This page was updated 15 March 2013