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"Response to WA Law Reform Working Group Report" 2 March 2007
WA Gov "Prostitution Law Reform Working Group" 07
WA Law Reform 06/07
WA
NEWSFLASH!! Law reform processes have begun in WA, Link here for more information.
The laws
WA sex work laws can be found in the Police Act 1892, the Criminal Code 1902 and the Prostitution Act 2000. There are also provisions covering sex workers in the Health Act 1911.Earlier laws drawn from the UK "Vagrancy Act" make it illegal to serve alcohol to a "known prostitute." While not generally used, these laws illustrate the barbaric and discriminatory approach of the WA laws to sex work. Link to West Australian Law Reform Commission article on the topic
The act of prostitution itself is not illegal in WA. However, there are laws pertaining to where it can be done and who can profit from it. For many years, the WA sex industry operated under the infamous ‘Containment Policy’ – an unofficial policy that put control of the sex industry in the hands of the police (vice dept.). A certain number of brothels in Kalgoorlie and Perth were ‘tolerated’ at police discretion, so long as they followed certain (again unofficial) guidelines. Sex workers in Perth were recorded on a voluntary register held by the Vice squad. Street-based sex work was not tolerated at all. The Police Commissioner announced that the Containment Policy would no longer be policed when the Prostitution Act 2000 was introduced.
That said, the WA sex industry still operates openly and visibly, and brothels and massage parlours are generally still ‘tolerated’ at police discretion. Names of individual sex workers are still added to a Vice register – however this system is no longer voluntary, and in most cases is done against their will. Street-based sex work is still not tolerated at all.
Civil rights
The Prostitution Act 2000 violates many civil and human rights of WA sex workers, and removes many of the judicial and evidentiary protections that most people take for granted.- The burden of proof was reversed. WA sex workers are presumed guilty until proven innocent.
- Sex workers can be held on ‘suspicion of intent’. Before a crime has actually taken place. They are detained or arrested because the police suspect that they were intending to solicit a client (or that a client was intending to solicit a sex worker).
- Police may participate in an unlawful act with complete immunity, in order to secure a conviction. Entrapment is lawful.
- Police have the power to enter premises without a warrant. They can enter any premises ‘suspected’ of being used for prostitution. This includes private homes.
- Police have the power to search, seize and detain without a warrant OR charge. This includes the power to strip search or order a cavity search, and you do not have to have actually been charged with a crime for this to occur (suspicion of intent). Sex workers can be detained for ‘as long as is reasonably necessary’ and police can use ‘whatever force that is necessary’ in order to carry out the search.
- Sex workers do not have the right to remain silent. Refusal to answer questions or produce documents could result in two years imprisonment.
Street-based sex workers
The Prostitution Act 2000 was created specifically to target street work. There are also a number of offences relating to street soliciting in the Criminal Code. Street work is really the only area of the WA sex industry in which the prostitution laws are consistently enforced. Soliciting a client in a public place is illegal, as is a client soliciting a street-based sex worker. Along with the right to stop, search and detain street-based workers, police can also issue them with Move-on Notices and Restraining Orders. A Move-on Notice (accompanied by a map of three or four inner city suburbs) bans a suspected sex worker from entering the area for up to 24 hours, effective immediately. If a person receives several Move-on Notice’s, Police can order a Restraining Order– banning him/her from the specified area for up to 12 months. No consideration is given to whether the person lives in the area. Neither is consideration given to the fact that the majority of sex worker agencies, drug support agencies and welfare agencies are located in the inner city area.Brothels
It is illegal to keep, manage or assist in the management of premises for the purpose of prostitution. Police have the power to enter premises without a warrant, search the premises, detain and search anyone on the premises (including strip search or cavity search), and seize documents or any other evidence that may be used to prove prostitution-related activities.Although brothels in Perth are quite visible and appear to be condoned by the police, most are subject to regular police visits and harassment. Every so often a brothel owner will be targeted for investigation and charges will be laid – yet others are never harassed at all. Brothel workers are forced to provide Vice officers with photo ID on request, and their personal details are taken down and added to a register without the worker’s consent.
Prior to the Prostitution Control Bill 2003 being introduced to parliament brothels were targeted by local councils, who appeared to be trying to close existing brothels down in case the Bill was passed and they lose planning authority.
Escort agencies
Escort agencies appear to operate within a legal loophole. In my understanding, operators cannot be charged because they are selling ‘companionship’, not sex. Escort workers tend to avoid police attention, because they are not on premises when police visit the agencies.Private workers
Private work also occupies a bit of a loophole. There are no specific laws pertaining to sole operators, so they only become illegal if they fall into any of the laws that cover brothels. It is illegal to keep premises for the purpose of prostitution, so private workers are not able to secure a separate address to work from – they must work from their residential address. Having more than one worker on premises makes them a ‘brothel’, so private workers are forced to work alone. They are unable to employ drivers, receptionists or security guards. In the same way that they enter brothels, Vice officers can enter private premises known to be occupied by a sex worker, without a warrant, and demand to view and record personal details.
Even though it is not an illegal activity, local councils will usually not grant a business permit to private sex workers. That means that even if they cannot be charged by police, they can be shut down by Councils for running a home business without council permission.
In addition, in order to run a legitimate home business in a rental property, you need consent from your landlord. When landlords are notified about their tenant’s occupation, they will often either evict the worker, or increase the rent dramatically under threat of eviction.
Other offences:
- Living off the earnings of prostitution. Used on partners of sex workers who have ‘no visible means of support’- In particular, partners of street based sex workers.
- Performing a service without a prophylactic. It is illegal both to offer or request a service without a condom (could also be applied to dental dams for oral).
- Promoting employment in the sex industry. It is illegal for brothels to advertise for sex workers and other ancillary staff.
- Having sex with a minor. It is an offence for a sex worker to provide a service to a client under the age of 18 - punishable by up to 14 years imprisonment.
- Child acting as a prostitute. Believe it or not, a person under 18 faces up to 2 years imprisonment for working as a sex worker. (And, that is double the sentence of an adult sex worker!)
- Promoting prostitution. Publishing, saying, or doing anything that could be seen to encourage someone to enter the industry or remain in the industry, is an offence. Basically just a way to ensure that nobody ever speaks about the sex industry in a positive light.
Draft prostitution legislation – the Prostitution Control Bill 2003 – was before the WA Parliament in May of 2003.
Politicians have described this Bill as both ‘legalisation’ and ‘decriminalisation’, when in fact it contains around 100 new offences and increased penalties. The Control Bill, largely modeled on the Liberal Bill of years earlier was said to be redrafted by the police ministers office and also contained large sections of the Prostitution Act 2000 (current laws), so the current extraordinary police powers and evidentiary provisions would remain. Street-based sex work would still be criminalised. Western Australian sex worker organisations and advocates along with many health, legal, human rights and union groups actively opposed the Bill’s introduction.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 services
Magenta and SWOPWA Condoms, health support, and information about your workplace and occupational health and safety rights.Updated 23 Feb 07