Scarlet Alliance "Submission to the Standing Committee on Justice and Community Safety’s inquiry into the ACT Prostitution Act 1992" 2011
Sex Industry Laws in Australian Capital Territory
- Scarlet Alliance Submission to the Standing Committee on Justice and Community Safety’s inquiry into the ACT Prostitution Act 1992.
- ABC NEWS: Sex trade laws under review for the first time in 18 years, 1 Oct 2009
- Prostitution Act 1992, Republished: 14 December 2006
- Contact SWOP ACT
What are the current laws in the ACT?
Brothel Work is legalIn the ACT there are no specific offences punishing those who work as sex workers in brothels. However, sex workers can be charged with criminal offences if they assist in management or permitting the premises to be used for sex work.
Brothels/Studios/Agencies must registerThe Prostitution Act 1992 requires brothels, private workers and escort agencies to register with the Registrar of Brothels and Escort Agencies. The registrar operates from the Department of Fair Trading, however is constituted by The Prostitution Act 1992 and has special powers. The Registrar enforces regulations but can only fine non-compliance with 10 penalty points or less. There are criminal penalties related to non-compliance with registration, for example failure to report annually to the Registrar is punishable by 1 year in prison (S13.1) Brothel registration information is available to the public.
Brothel location is restrictedBrothels are restricted to operating only in the areas of Mitchell and Fyshwich. (Penalty is one year imprisonment, S18.1 of the Act.)
Other limits on BrothelsThere is no limit to the number of rooms in a brothel, and no probity investigations conducted as part of the regulation process. However, like Queensland and Victoria, all owners and interested persons must obtain a police report to ensure they have not been convicted of a disqualifying offence. These include assault, sexual assault, paedophilia, offences against the Prostitution Act and miscellaneous others. (see Section 6, Schedule 2 and Schedule 3 of the Act)
Private WorkIt is not an offence to work as a sex worker from your own home. However you must work alone.
Private workers are also called sole operator brothels or escorts and can operate legally under the Prostitution Act, and register with the Department of Fair Trading in the same way as Brothels and Escort Agencies. They must be registered one week prior to commencement of work. This incurs a fee which is payable once a year. The registrar cannot make the name and the address of the Sole Operator available for public inspection, but the record may be made accessible to police during an investigation or to a public servant in the course of their duties, eg the ATO, Police and others (S11.5 and 11.6 of the Act). If you have any concerns about registration, please call SWOP ACT or consult legal advice for further information about privacy and confidentiality. Private workers are prevented by law from sharing work premises, although there is no restriction as to the location from which they can work. There is no problem if the private workers use two separate apartments in the same complex, adjacent townhouses or two separate hotel rooms.
Street Based Sex WorkIn the ACT, street sex work is illegal and workers may be arrested for soliciting or loitering for extended periods for the purpose of prostitution. The Police Offences Ordinance 1930 states "persistently soliciting or importuning for an immoral purpose in a public place, s.23".
HealthBrothel owners must take reasonable steps to ensure that no-one works for them while infected with an STI. This is interpreted by most owners to mean that if they make sure all workers have regular medical tests hen they are taking reasonable steps. Brothel owners are to take steps to prevent sex workers with STI’s from working, (S24, penalty for non-compliance, 1 year imprisonment).
Workers are not allowed to work in the ACT, either privately or at a brothel, if they have an STI. Knowingly working with an STI is punishable by 6 months imprisonment (S25). STIs are defined under the Sexually Transmitted Diseases ACT 1956. It does not list Hep C as an STI, so it is not illegal to work while Hep C positive.
It is illegal to use the results of a medical test, or the fact of having had a medical test, or to show a client an attendance certificate, to imply that a worker is free of STIs. (s26.2)
If owners and workers don’t take the precaution of STI tests, or lie about having a test, or lie about not-having an STI, they could face a fine. (S26)
Brothel Owners must take all reasonable steps to make sure workers are using condoms. Usually owners provide condoms to workers.
Brothel owners must not discourage the use of condoms.
Condoms must be used for all penetrative sex of any kind, but dental dams are not mentioned.
It is illegal to perform penetrative sex without a condom, for both the worker and the client. If the client interferes with or tries to remove the prophylactic during sexual intercourse they may be charged.
Owners discouraging use of prophylactics (including Dams), and workers working without prophylactics (including Dams) are committing an offence and can be fined (s27). If a client interferes with a prophylactic they can also face a fine (s.27.4)
Other Laws Punishing Sex Work Related Activities.
Under-Age Sex WorkIt is an offence to procure or hire a person for the purpose of sex work if the person is under the age of 18. (S.20, penalty 10 years imprisonment, or up to 15 if the child is under 12 years). However, believing that the person was over 18 is a defence (S.22) provided the accused took reasonable steps to determine the age of the child. For example if the person had fake ID.
General Discussion PointsThe legislation dealing with sex work cannot be separated from its practice. It is perhaps this area where most confusion occurs: the biggest issue being the difference between the intent of the legislation and its practices. As with the legislation, police policy on sex work varies between jurisdictions. In the ACT the police policy is one of ‘containment and control’. Although most aspects of sex work are illegal, the police allow the continuation of some form of sex work. The criminal penalties against brothel and private workers are not enacted by the police.
Brothels and massage parlours offering sexual services are illegal in the ACT, although police allow their existence, provided they abide by the “containment and control” system. The police surveillance of brothels limits the number of operations and their locations.
The policy of ‘containment and control’ seems to be effective and not cause any major difficulties. Sex worker collective representatives in the ACT generally agree the police are polite and do not harass the women.
The disadvantage of this legislation is that it does nothing to assist the rights of sex workers or improve the standards of their working conditions. Sex workers in the ACT have accessed both the Equal Opportunity Commission and the Industrial Relations Commission, albeit not always successfully. In the 1990s a sex worker took the newspaper to the Equal Opportunity Commission to demand that advertising rates for sex workers were equalised to that of other professions, but the case failed.
Information collected from private workers and brothel owners is frequently shared between Government Departments and is in no ways secure.
ACT Sex Worker OrganisationSWOP ACT
SCARLET ALLIANCE DEMANDS CHANGES TO THE ACT LAWS FOR SEX WORKERS WITH HIV
Updated 16 April 2015