Sex Work and the Law

From Hollywood to vocal anti-trafficking groups, sex work has long been demonised as criminal behaviour. However, Amnesty International has now recognised that this should not be the case, passing a resolution saying that sex work should be decriminalised.

At an International Council meeting in Dublin earlier this month, a majority voted to pass the resolution. They are now calling on member states – including Australia – to decriminalise sex work.

The resolution also recommends that states ensure sex workers are fully protected under the law from exploitation, trafficking and violence.

This has already happened in NSW, Queensland and Victoria. So the question is, will other States follow suit?

Amnesty’s Secretary General, Salil Shetty, said:

“Sex workers are one of the most marginalised groups in the world who in most instances face constant risk of discrimination, violence and abuse.”

Overwhelmingly, the Committee’s research showed that sex workers in countries where it is criminalised are exposed to bigger risks of physical and sexual violence, extortion, human trafficking and arbitrary arrest.

The idea is that decriminalising sex work means governments can regulate the industry, and make sure standards are being upheld. This policy will also help reduce other types of crime and human rights violations that surround sex work.

One of the most obvious violations is Article 23 of the UN’s Declaration of Human Rights, the “right to work to free choice of employment, and to just and favourable conditions of work.”

The Law in NSW

NSW has some of the most liberal sex work laws in Australia. Indeed, it is legal to run a brothel in NSW provided that you have the required licence.

However, section 19A of the Act makes it an offence to solicit prostitution :

1. On a road or road related area,
2. From a motor vehicle,
3. In a school, church or hospital, or
4. Near or within view from a dwelling, school, church, hospital or public place

The maximum penalty for the offence is 3 months imprisonment and/or $660.

If the solicitation is done in a way that harasses or distresses the person, the maximum fine increases to $880.

In 2013, new laws were introduced in an attempt to stop the exploitation of sex workers by organised crime groups. The crackdown focused on massage parlours that moonlighted as brothels, even going as far as hiring private investigators to spy on massage businesses.

The current laws in other states

In Western Australia, the Northern Territory, Tasmania and South Australia, sex work is legal but running a brothel is not. The industry is unregulated and arguably leaves sex workers open to exploitation by unscrupulous operators and even organised crime groups.

There have been several attempts at reform in these states and territories– with South Australia going through six different bills. However, the Criminal Law Consolidation Act 1935 (SA) and the Summary Offences Act 1953 (SA) still make it illegal to run a brothel or solicit in a public place. Western Australia and the Northern Territory have laws along similar lines.

In Tasmania, the Sex Industry Offences Act 2005 (Tas) makes it illegal to employ a sex worker; and under s 12, people who “provide or receive sexual services” are required by law to use a prophylactic (condom).

What will the impact of the Amnesty International resolution be?

Ultimately, it is up to each State to decide whether sex work should be decriminalised, and to what extent.

The resolution sends a strong message that sex work as a legitimate form of employment and should not be criminalised. Research also suggests that a regulated industry is safer for sex workers – and, presumably, for their clients.

But resolutions won’t necessarily change the public’s attitude towards the world’s oldest profession, or how it is represented in movies and other media.

Changes in domestic law may, however, go some way towards giving sex workers the rights and protections that other workers enjoy.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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