Though Australia is largely homogenous in its attitudes to prostitution,[citation needed] the legal responses to the issues involved of the various jurisdictions have differed. Some of the differences have been due to political factors. Eastern Australian states and territories liberalised their laws in the late-20th century; however, liberalisation has been restricted by upper houses of Parliament of several States, with legislation either being defeated or extensively amended. New South Wales was the first State to adopt a different model, decriminalising prostitution in 1979. This in turn became a model for New Zealand and a failed attempt in Western Australia in 2008. Victoria and Queensland adopted different models, based on legalisation: Victoria in 1986 and Queensland in 1992. In the remaining states of Tasmania, South Australia and Western Australia, despite intense debate and many proposed legislative reforms there has been no change in the laws. In the territories the Australian Capital Territory adopted partial decriminalisation in 1992, and the Northern Territory also allowed a partial decriminalisation in 1992. In all jurisdictions the issue remains deeply divisive, and in the three eastern states with regulated sex work, there has been a process of continual review.
History
Sex work in Australia has operated differently depending on the period of time evaluated. For this reason discussion is divided into three distinct periods of time, convict, late colonial and Federal. Pre-colonial "prostitution" among Aboriginal peoples is not considered here, since it bore little resemblance to contemporary understanding of the term. The arrival of the Europeans changed this "wife exchange" system, once they started exchanging their European goods for sexual services from Aboriginal women. During the convict period English common law applied, and dealt with brothel keeping, disorderly houses and public nuisance. The late colonial period viewed prostitution as a public health issue, through the Contagious Diseases Acts. Since Federation in 1901 the emphasis has been on criminalising activities associated with prostitution. Although not explicitly prohibiting the act of sexual exchange, the criminal law effectively produced a de facto prohibition.[1]Convict period 1788–1840
Prostitution probably first appeared in Australia at the time of the First Fleet in 1788. Some of the women transported to Australia had previously worked in prostitution, while others were forced into it by economic circumstances, and a severe imbalance of the sexes. While the 1822 Bigge Inquiry refers to brothels, these were mainly women working from their own homes.[1]Colonial period 1840–1901
In the colonial period, prior to federation, Australia adopted the Contagious Diseases Acts of the United Kingdom between 1868 and 1879 in an attempt to control venereal disease in the military, requiring compulsory inspection of women suspected of prostitution, and could include incarceration in a lock hospital.[2]Federal period 1901–1970s
After the Federation of Australia in 1901, criminal law was left in the hands of the states. However criminal law relating to prostitution only dates from around 1910. These laws did not make the act of prostitution illegal but did criminalise many activities related to prostitution. These laws were based on English laws passed between 1860–1885 and related to soliciting, age restrictions, brothel keeping and leasing accommodation.[3]Post 1970s
Since the 1970s there has been a change towards liberalisation of prostitution laws, though the actual approaches have varied. A May 1990 Australian Institute of Criminology report recommended that prostitution not be a criminal offence, since the current laws were ineffective and endangered sex workers.[4] A survey conducted in the early 2000s showed that 15.6% of Australian men aged 16–59 have paid for sex at least once in their life and 1.9% had done so in the past year. Men who had paid for sex were more likely than other men to smoke, to drink more alcohol, to have had a sexually transmitted infection (STI) or been tested for HIV, to have more sexual partners, to have first had vaginal intercourse before 16, and to have had heterosexual anal intercourse.[5]Health
Health and safety regulations and peer education have been effective at keeping STIs in the sex worker population at a low level, similar to the general population, and comparable amongst the states (Maginn 2013). Although there had been claims that sex workers were responsible for STI levels in mining communities, subsequent research has shown this not to be true.[6]Human trafficking in Australia
Main article: Human trafficking in Australia
The number of people trafficked into or within Australia is unknown. Estimates given to a 2004 parliamentary inquiry into sexual servitude in Australia ranged from 300 to 1000 trafficked women annually.The United Nations Office on Drugs and Crime (UNODC), Trafficking in persons: global patterns lists Australia as one of 21 trafficking destination countries in the high destination category.
Australia did not become a party to the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others when it was implemented in 1949. It has implemented in 1999[7] the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime,[8] to which it is a party. Australia has also ratified on 8 January 2007 the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, which requires it to prohibit, besides other things, child prostitution. For the purpose of the Protocol, a child is any human being under the age of 18, unless an earlier age of majority is recognised by a country's law. In all Australian jurisdictions, the minimum age at which a person can engage in prostitution is 18 years, although it is argued against the age of consent, and it is always illegal to engage another in prostitution.
Australian Capital Territory
History
Prior to passage of the 1992 Prostitution Act prostitution policy in the Australian Capital Territory (ACT) consisted of "containment and control" under the Police Offences Act 1930[9] This prohibited keeping a brothel, persistently soliciting in a public place, or living on the earnings of prostitution. This law was not enforced. In 1991 a report entitled Prostitution in the ACT: Interim Report (Australian Capital Territory) was produced by the Select Committee on HIV, Illegal Drugs and Prostitution describing the then state of the industry, the shortcomings of the law, and the possible reforms available. having considered the example of other Australian States that had adopted various other models, the committee recommended decriminalisation, which occurred in the 1992 Prostitution Act. (Collaery 1991).Current situation
Following decriminalisation with the passage of The Prostitution Act 1992, a/k/a "Anna's Law,"[10] brothels are legal, but sex workers are required to register with the Office of Regulatory Services (ORS).[11] The ORS also registers and regulates brothels and escort agencies. Sex workers may work privately but must work alone. Soliciting remains illegal (Section 19).Subsequent amending acts include the Prostitution Amendment Act 2002[12] and the Justice and Community Safety Legislation Amendment Act 2011[13] (Part 1.7), a minor administrative amendment.
Legislative Review 2011
The legal situation was reviewed again with a Standing Committee on Justice and Community Safety's inquiry into the ACT Prostitution Act 1992, following the death of a 17-year-old woman, Janine Cameron, from a heroin overdose in a brothel in 2008.[14]The inquiry was established on 28 October 2010. The committee, chaired by Liberal MLA Vicki Dunne, devised terms of reference that were as follows:
- the form and operation of the Act
- identifying regulatory options, including the desirability of requiring commercially operated brothels to maintain records of workers and relevant proof of age, to ensure that all sex workers are over the age of 18 years
- the adequacy of, and compliance with, occupational health and safety requirements for sex workers
- any links with criminal activity
- the extent to which unlicensed operators exist within the ACT
- other relevant matter[15]
Ms Dunne stated that the committee would consider exit schemes;[24] however Attorney-General Simon Corbell stated that it was unlikely there will be any substantive changes to the status quo.[25][26] The committee completed its hearings on evidence on 13 July 2011,[27] and issued its report in February 2012.[28] The Government issued a formal response in June,[29][30][31] stating it would follow most of the recommendations and that the inquiry had affirmed that sex work was a legitimate occupation.
In the October 2012 elections the opposition Liberals campaigned on a platform to oppose allowing more than one sex worker to use a premise in suburban areas[32] but were not successful in preventing a further term of the ALP Green alliance.
Advocacy
Advocacy for sex workers in the ACT is undertaken by SWOP ACT (Sex Work Outreach Project).[33]New South Wales
New South Wales (NSW) has the most liberal legislation on prostitution in Australia, with almost complete decriminalisation, and has acted as a model for other jurisdictions such as New Zealand.Brothels are legal in NSW under the Summary Offences Act 1988.[34] The only activities that are illegal are:
- living on the earnings of a prostitute, although persons who own or manage a brothel are exempt
- causing or inducing prostitution (procuring: Crimes Act s.91A,B)
- using premises, or allowing premises to be used, for prostitution that are held out as being available for massage, sauna baths, steam baths, facilities for exercise or photographic studios
- advertising that a premises is used for prostitution, or advertising for prostitutes
- soliciting for prostitution near or within view of a dwelling, school, church or hospital
- advertising that anal penetration will take place
- engaging in child prostitution (Crimes Act s.91C-F) [35]
History
Early era
NSW was founded in 1788 and was responsible for Tasmania until 1825, Victoria until 1851 and Queensland until 1859. It inherited much of the problems of port cities, penal colonies and the gender imbalance of colonial life. Initially there was little specific legislation aimed at prostitution, but prostitutes could be charged under vagrancy provisions if their behaviour drew undue attention. In 1822 Commissioner Bigge reported stated there were 20 brothels in Sydney, and many women at the Parramatta Female Factory were involved in prostitution.[37] The Prevention of Vagrancy Act 1835 was designed to deal with 'undesirables'.[1]The 1859 Select Committee into the Condition of the Working Classes of the Metropolis described widespread prostitution. Nineteenth century legislation included the Criminal Law Amendment Act 1883 and Police Offences Act 1901. Attempts to pass contagious diseases legislation were resisted, and unlike other States, legislative control was minimal till the general attack on 'vice' of the first decade of the twentieth century which resulted in the Police Offences Amendment Act 1908, and the Prisoners Detention Act. Street prostitution was controlled by the Vagrancy Act 1902 (sec. 4[1] [c])[1] enabling a woman to be arrested as a 'common prostitute'. This was strengthened by an amendment of the Police Offences (Amendment) Act 1908, which also prohibited living on the earnings.
Modern era
Strengthening the laws
The Vagrancy Act was further strengthened in 1968, making it an offence to 'loiter for the purpose of prostitution' (sec. 4 [1] [k]). These provisions were then incorporated into the Summary Offences Act 1970, s.28.Decriminalisation
In the 1970s an active debate about the need for liberalisation appeared, spearheaded by feminists and libertarians, culminating under the Wran ALP government in the Prostitution Act 1979. Eventually NSW became a model for debates on liberalising prostitution laws. However, almost immediately community pressure started to build for additional safeguards, particularly in Darlinghurst (Perkins 1991), although police still utilised other legislation such as the Offences in Public Places Act 1979 for unruly behaviour. Eventually, this led to a subsequent partial recriminalisation of street work with the Prostitution (Amendment) Act 1983, of which s.8A stipulates that;(1) A person in a public street shall not, near a dwelling, school, church or hospital, solicit another person for the purpose of prostitution …
(2) A person shall not, in a school, church or hospital, solicit another person for the purpose of prostitution.
This resulted in Darlinghurst street workers relocating (Perkins 1991).
Further decriminalisation of premises followed with the[38] implementation of recommendations from the Select Committee of the Legislative Assembly Upon Prostitution (1983–86). Although the committee had recommended relaxing the soliciting laws, the new Greiner Liberal government tightened these provisions further in 1988 through the Summary Offences Act in response to community pressure.[citation needed]
The current regulatory framework is based on the Crimes Act 1900,[39] Disorderly Houses Act 1943 (renamed Restricted Premises Act in 2002), Environmental Planning and Assessment Act 1979, and Summary Offences Act 1988. The suburbs of King's Cross in Sydney and Islington in Newcastle have been traditional hotbeds for prostitution. New South Wales is the only Australian state that legalises street prostitution. However, community groups in those locations continue to push for re-criminalisation.[40]
As promised in its 2011 election campaign, the Liberal Party sought review of the regulation of brothels. In September 2012, it issues a discussion paper on review of the regulations.[41] It stated that the purpose was three-fold, the protection of residential amenity; protection of sex workers and safeguarding public health (Maginn 2013). Nevertheless, there is no evidence of a negative effect of brothels on the community.[42][43]
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