In Western Australia sex work is largely governed by the Prostitution Act 2000.
A smaller number of offences are also contained in the Criminal Code, the Health Act 1911 and the Liquor Control Act 1988.
The criminal laws in Western Australia formally prohibit most prostitution related activities, for example soliciting sex in public.. However, like the laws in many common law jurisdictions, the act of prostitution in itself is not an offence.
Section 8 of the Prostitution Act 2000 states that it is an "offence for a person to engage in an act of prostitution without using a prophylactic that is appropriate for preventing the transmission of bodily fluid from one person to another." Both the worker and the client may be charged under this section.
Living on the earnings is an offence, and the way it is worded means it could apply to a sex worker’s dependants, others working in a brothel (such as the receptionist) and to those involved in running an escort agency. Note however, that between 2000-2005 no charges were prosecuted for this offence.
"Despite a remarkably large number of laws against prostitution-related activities, offenses finalised in the WA courts were overwhelmingly concentrated on the street-based sex industry. Indeed, more male clients of street workers were prosecuted than street workers. Over the six-year period, 2000 to 2005, there were no prosecutions against several prostitution laws." -The Sex Industry in Western Australia: A Report to the Western Australian Government By Donovan Et Al.
DEFINITION OF "PROSTITUTION" IN THE PROSTITUTION ACT 2000
The Prostitution Act 2000 has a fairly broad definition of "prostitution." It is not just defined as the exchange of money for sexual services, it also includes massage for sexual stimulation and is not limited to just monetary payment.
"When this Act refers to prostitution it means prostitution in which payment is consideration for the sexual stimulation of a person (the client) by means of physical contact between the client and another person (the prostitute), or between either of them and anything controlled by or emanating from the other, and it is irrelevant whether payment is in money or any other form." -Section 4 of the Prostitution Act 2000
There appear to be no prohibitions regarding the conduct of an escort business or the work of escorts. It was held in Powell v Devereaux Supreme Court of Western Australia, 12 June 1987, Appeal No 1053 of 1987 that the brothel keeping offence under s 76F of the Police Act (now s 190 of the Criminal Code) does not extend to the running of an escort agency where the workers and clients met elsewhere. However, as noted by the Law Reform Commission of Western Australia, a prosecution for the offence of live on the earnings may extend to those involved in the running of an escort agency. For private workers working from home, it is a bit of a legal grey area. Some legal rulings have given the feeling that if one worker is working from home, and it is primarily their home, then this is permissible. For more information see page 26 ofThe Sex Industry in Western Australia: A Report to the Western Australian Government By Donovan Et Al.
The offences prohibiting brothel keeping or management are contained in s 190 of the Criminal Code, (introduced in 2004 and proclaimed in 2005.) Section 190 is broadly drafted and prohibits a wide variety of acts relating to premises used for the purposes of prostitution: keeping, managing, assisting in the management, being the tenant, lessee or occupier, lessor, landlord, agent or rent collector.
STREET BASED SEX WORK
In WA, Street-Based Sex Work is criminalised and there is a punitive approach in place to enforce the legislation.
The quotes below outline the key laws affecting street based sex worker in Western Australia. They are quotes from "Sex Workers' Rights, Human Rights: The Impact of Western Australian Legislation On Street Based Sex Workers" written by Elaine Dowd in 2002. ￼ "Under the Prostitution Act 2000 (WA) (s24), any person suspected of engaging in, or intending to engage in street prostitution as either a prostitute or client, can be issued with a "move-on notice" which prevents them from returning to a specified inner-city area for up to 24 hours, even if their residence is in this area.
If they are stopped within that area during that period, they may be issued with a restraining order, which prohibits them from entering a specific area for up to one year (s38)...For those street workers who live in the exclusion zone, a move on notice or restraining order may mean being unable to return to their home, resulting in disturbances to the lives of their partners and children."
"Currently in WA the police can stop and search any person who they have reason to suspect is soliciting (Prostitution Act 2000 (s25)). Suspicion may be based on the way a person is dressed or on the person being in a particular location. If the police find anything about the person that indicates that they have the intention of engaging in sex for money, then that person can be charged. The Prostitution Act 2000 does not specify what items might constitute evidence of prostitution, but one specific item which has been used by the police as evidence of intention to engage in prostitution is a condom...Contradictorily, another part of the Act states that it is an offence to engage in an act of prostitution without using a condom (Prostitution Act 2000 (s8)).
The Prostitution Act 2000 (WA) provides for body searches to be carried out, but only by a person of the same sex as the person being searched (s29(1)). In practice this is not consistently adhered to (personal observation, October 2000). The legislation also states that "cavity" searches may be performed by a doctor or nurse (s29(5) and that "reasonable force" can be used by police officers to ensure that such searches are carried out (s29(6)). The Act does not specify that the doctor or nurse or any assisting police officers must be the same sex as the person being searched. In other words, any woman who is suspected of an intention to engage in an act of prostitution can, quite legally, be held down by one or more male police officers while her vagina and anus are searched by a male doctor. This can occur without any charges being laid and could legitimately happen to any woman who happened to be standing on a street corner waiting for a friend or a taxi.
A further section of the Act (s35) provides for police officers to engage in activities that would otherwise be illegal but for which, in the context of "detecting an offence", full immunity is afforded to the police officer. At the discretion of the Commissioner of Police, undercover officers may solicit people for the purposes of prostitution."
Section 9 of the Prostitution Act prohibits advertising to recruit both sex workers and other employees who may be employed by a brothel, such as security guards, receptionists and cleaners.
SEX WORKERS UNDER 18 Under section 14 of the Prostitution Act 2000: “A person who acts as a prostitute commits an offence under this section if... the person is a child" A child is defined as someone under 18 years of age. The penalty for this is Imprisonment for 2 years. In other words if a person who is under age 18 years is found to be working as a sex worker, they can charged and sentenced to prison.
Debate over sex work legislation continues in Western Australia (2014) Includes link to hear full interviews with Rebecca Davies from Scarlet Alliance and MP Peter Abetz.
Sex Workers Continue Protest In Western Australia against Barnetts Bill May 2013
- Link to Scarlet Alliance Media Release May 2013
- Link to print media May 2013
- Link to ABC Coverage May 2013
Info pack regarding the WA Laws
During consultation periods, anyone is able to put in writing their concerns with the laws. As sex workers, we are the experts and most able to see where licensing and registration police powers will create problems, be harmful, or just not be practical. It is important to identify what you think is wrong with the planned laws BEFORE they become law.
Sex workers have stopped the licensing and registration police powers bill from becoming law in WA for over a decade. Join the campaign to continue to oppose this bill.
September 2012 Lobbying trip to WA Parliament: Scarlet Alliance Executive Committee Members Jane Green & Ryan Cole
Scarlet Alliance 2011 submissions to Christian Porter
In 2011 Scarlet Alliance researched and authored two major submissions in response to the licensing & sex work registration police powers bill.
January 2011, Responding to proposals to ban sex work in residential areas, license and register sex workers and auxiliary staff, increase criminal penalties for non-compliance and expand related police powers.
July 2011, Responding to proposals to criminalise clients, criminalise all migrant sex work, criminalise all sex work in suburbia, create palm print criminal registration for all sex workers and criminalise unprotected sex.
Media in WA
Download related documents
Submission to the WA Green Bill Prostitution Control Bill 2002, Scarlet Alliance. Linda Banach and the Scarlet Alliance Legal Working Party look at the proposed laws clause by clause.
Executive Summary to Submission to WA Green Bill, Scarlet Alliance. Cover Letter and one page brief of the Scarlet Alliance Response to the WA ‘Green Bill’ Prostitution Control Bill 2002. Janelle Fawkes, Maria McMahon, Linda Banach and the Scarlet Alliance Legal Working Party
Debate Tomlinson (Liberal), Watson (Greens WA), Hough (One Nation), Foss (Liberal) and Griffiths (Labor Minister) debate lifting the sunset clause from the Prostitution Act 2000 on Friday the 13th of June 2003.
Link to sex worker servicesMagenta and SWOPWA Condoms, health support, and information about your workplace and occupational health and safety rights. People for Sex Worker Rights WA Website
People for Sex Worker Rights WA twitter handle: @sexworkrightswa
updated 17 April 2016