Hobart Community Legal Service - Tasmanian Department of Justice

30 March 2012
Project Manager
Regulation of the Sex Industry in Tasmania
Department of Justice
By e-mail: legislation.development@justice.tas.gov.au
Dear Project Manager
Re: Regulation of the Sex Industry in Tasmania
Thank you for the opportunity to provide comment in relation to the Department of
Justice‟s review into the regulation of the sex industry in Tasmania.
By way of background, the Hobart Community Legal Service (HCLS) is a community
legal centre, providing legal advice and representation to low income or otherwise
disadvantaged people in southern Tasmania. As well as providing legal advice and
representation, the HCLS engages in community legal education and works toward law
reform in areas affecting disadvantaged and vulnerable Tasmanians.
The HCLS‟s submission makes recommendations in response to those points raised in the
Discussion Paper.
Since the 1990s the HCLS has been lobbying for the regulation of the sex industry in
Tasmania. Throughout the early 2000s, the HCLS worked constructively with the then
Attorney-General, the Department of Justice, the Scarlett Alliance and other relevant
stakeholders in the development of the Sex Industry Regulation Bill 2005 (Tas). 1
The Sex Industry Regulation Bill provided for the regulation of the sex industry in
Tasmania. It is the view of the HCLS that regulation is the appropriate legislative
approach to the sex industry. The HCLS submits that in developing a legislative
approach to the sex industry, the safety and welfare of those involved in the industry
needs to be a paramount consideration. Regulation is the best placed model to address
the safety and welfare of those involved in the sex industry.
The HCLS notes the recent public comments from those advocating for a criminalised
legislative approach. Arguments in favour of criminalising the sex industry in Tasmania
appear to be based on views that sex work is immoral and based upon an assumption that
by criminalising the industry, sex work will not occur.
As noted previously, the HCLS submits that legislation relating to the sex industry must
1 Available on-line at

2
be approached with regard to the safety and welfare of those involved in the industry.
The HCLS rejects any attempt to legislate on this issue upon a selective morality basis.
The assumption that legislative prohibition will eradicate sex work is wrong. Prior to the
enactment of laws in various Australian jurisdictions aiming to decriminalise aspects of
the sex industry, the Australian Institute of Criminology conducted a study of Australian
prostitution laws 2 . After noting that prostitution has existed for centuries, the report
noted that in regard to the criminalisation approach, the approach did not prevent demand
for sex work, and the sex industry continued to exist. The report noted:
Restrictive laws which seek to prohibit behaviour for which there is a substantial
demand and which is profitable encourage the involvement of organised crime
and corruption (Queensland 1989, p. 186).
According to the Fitzgerald Report, the criminalisation of prostitution has
encouraged significant criminal activity for several years (Queensland 1989, p.
66). The criminalisation of prostitution has resulted in serious health and welfare
problems and has made it difficult for women in the industry to seek help for
these problems. It has led, in many cases, to the legal harassment of women while
syndicates and pimps controlling the trade have generally been left untouched.
Furthermore, heavy criminal sanctions have led to greater police corruption and
criminal involvement in prostitution. 3
The Discussion Paper refers to the variation of the criminalisation approach that is
currently in effect in Sweden. Under the Swedish law, sex workers are not criminalised,
however, purchasing sexual services is criminalised, as is procuring and profiting from
sex work. The flaws inherent in the criminalisation approach remain in the Swedish
model. That is, that sex work still exists, but has merely been driven underground at a
cost to the safety and welfare of sex workers. Citing a study on the Swedish model,
Harcourt et al write:
Sex workers have complained that they are denied choice of work site and clients,
and their work conditions have become more dangerous and difficult. They also
complain that police harass them to give evidence against clients. Prostitution
has not ceased but it has become more covert, and possibly more dangerous as
sex workers „are forced to accept not only more clients (since prices have
dropped) but also more unstable and dangerous clients‟. 4
2 Pinto, Susan, Anita Scandia and Paul Wilson, „No. 22 Prostitution Laws in Australia‟, Australian
Institute of Criminology trends & issues in crime and criminal justice, May 1990 (available on-line at:
citing: Queensland 1989, Commission of Inquiry
into Possible Illegal Activities and Associated Police Misconduct, Report of a Commission of Inquiry
Pursuant to Orders in Council, (Fitzgerald Report)
3 Ibid, p 7
4 Harcourt, Christine, Sandra Egger and Basil Donovan, „Sex work and the law‟ Sexual Health 2005; 2:
121-128 at 123, citing: Kulick D, „Sex in the new Europe: the criminalization of clients and Swedish fear of
penetration‟ Anthropological Theory 2003; 3: 199-218.

3
The current legislative approach in Tasmania provides that it is not illegal to be a sex
worker in Tasmania, however, other aspects of the sex industry are criminalised.
Under the Sex Industry Offences Act 2005 (Tas) (the Act) it is an offence for a person to
be a commercial operator of a sexual services business, and an offence for a person to
knowingly receive „commercial sexual services‟ 5 . The Act also prohibits premises from
being used for commercial sexual services. Under the Act, it is also illegal for sex
workers to work together (with the exception that two sex workers are able to do so in a
partnership arrangement, provided neither controls or manages the other), or as
employees.
The current Tasmanian Act creates confusion as to whether sex work is illegal or not.
The Act encourages sex workers to work independently, thereby limiting safeguards that
are available when sex workers are able to work together (for example when dealing with
aggressive, confrontational or violent clients) and makes it difficult for sex workers to
complain if they are not treated properly.
Recommendation 1: The Hobart Community Legal Service recommends that the Sex
Industry Offences Act 2005 (Tas) be repealed. The Hobart Community Legal Service
recommends that the Sex Industry Offences Act 2005 (Tas) be replaced with legislation
that provides for the regulation of the sex industry in Tasmania.
Recommendation 2: The Hobart Community Legal Service recommends that new
legislation be enacted to provide that registered sexual service businesses are lawful; that
registered sex workers may work as self-employed workers, or within registered sexual
service businesses; and that persons may receive commercial sexual services.
The HCLS maintains its support for legislative regulation of the sex industry in
Tasmania. As part of the regulatory approach, it is the view of the HCLS that both sexual
service businesses and sex workers must register with a government administered agency.
The regulatory approach is the best means of attempting to ensure that children are not
involved in the sex industry. Whilst the Discussion Paper notes that registration by itself
cannot guarantee that no child will work in the sex industry 6 , in comparison to the other
legislative approaches, the regulatory approach provides the greatest safeguards to ensure
that children are not involved in the sex industry.
It is through the regulatory approach that the welfare of sex workers and clients may be
best realised. Under a regulatory approach, such as that proposed in the Sex Industry
Regulation Bill 2005 (Tas), only fit and proper persons are able to be granted licences and
those licenses are contingent upon adherence to legislative provisions, such as those
relating to sexual health and working conditions. Such adherence benefits both sex
5 Defined as „sexual services provided by a sex worker in a commercial sexual services business‟: Sex
Industry Offences Act 2005 (Tas) s 5(1)
6 Discussion Paper, p 22

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workers and clients.
The HCLS notes that the registration of sex workers is not an approach favoured by the
Scarlet Alliance, an organisation representing and advocating on behalf of sex workers in
Tasmania. The HCLS maintains its support for registration of sex workers and sexual
service businesses, however. Registration is the most appropriate method to ensure that
sex workers are working within the terms of the legislation and are not being exploited.
The HCLS recommends that registered sexual service businesses and sex workers be
given registration numbers, and that such registration numbers must be displayed in any
advertising relating to their sexual service business. This requirement would aid in
preventing unregistered sexual service businesses and workers from operating. To attract
clients, sexual service businesses advertise. A requirement that a registration number
must be displayed in advertising would mean that it would be difficult for unregistered
businesses to attract clients.
Recommendation 3: The Hobart Community Legal Service recommends that sex
workers and sexual service businesses must be registered to legally work and operate in
Tasmania. Such registration must be with a government administered agency.
Recommendation 4: The Hobart Community Legal Service recommends that sex
workers and sexual service businesses be issued with a registration number upon
registration.
Recommendation 5: The Hobart Community Legal Service recommends that the new
legislation contain provision as to when an applicant will be refused registration. The
Hobart Community Legal Service recommends that generally, registration should be
refused where an applicant for registration has committed an offence under legislation
regulating the sex industry.
Recommendation 6: The Hobart Community Legal Service recommends that the
registration number must be displayed in any advertising relating to the sexual services
business.
The Sex Industry Regulation Bill 2005 (Tas) contained a number of legislative
requirements and offence provisions, designed to protect sex workers, the clients of sex
workers, and the community more generally. These requirements and offences
provisions, contained in sections 21-29 of the Sex Industry Regulation Bill 2005 (Tas)
were designed to ensure safe workplaces, that safe sex practices were followed, and that
children were not involved in the sex industry. The HCLS recommends that a new law
providing for the regulation of the sex industry in Tasmania contain such legislative
requirements and offence provisions.
Recommendaiton 7: The Hobart Community Legal Service recommends that the new
legislation contain legislative requirements and offence provisions designed to protect sex
workers, clients and the community. The Hobart Community Legal Service recommends

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that the legislative requirements and offence provisions contained in section 21-29 of the
Sex Industry Regulation Bill 2005 (Tas) provide a suitable model for the drafting of such
provisions.
The Discussion Paper also raises the issue as to how planning law should apply to sexual
service businesses.
The HCLS maintains its support for the position that all businesses must be subject to the
same planning laws. Sexual service businesses must be treated in the same way as any
other business under relevant planning law.
The HCLS maintains its position of rejecting proposals to create „buffer zones‟, or linear
measurements, within which sexual service businesses cannot be located. Exclusion
zones may make the legalisation of sexual service businesses unworkable. As noted in
the Discussion Paper, it may be extremely difficult to find areas in Tasmania cities that
are not near places frequented by children. 7 Exclusion zones may also result in a
proliferation of sexual service businesses within close proximity of one another, creating
a „red light district‟. Additionally, there may also be a greater risk of harm to sex
workers should they be forced into industrial areas with little security or lighting.
The HCLS submits that the location of businesses should be decided upon according to
standard planning law principles, as opposed to set moralistic judgements.
Recommendation 9: The Hobart Community Legal Service recommends that the Land
Use Planning and Approvals Act 1993 (Tas) apply to sexual service businesses in the
same way it applies to any other business.
In 2009 the „Report
 on the Review of the
 Sex Industry Offences Act 2005‟ 8 was tabled
in the Tasmanian Parliament. In addition to recommending that the Parliament consider
the suitability of alternative legislative models for the sex industry in Tasmania, the
Report also recommended that:
1. A pamphlet outlining the legal status of sex work be developed for distribution to sex
workers;
2. A dedicated community-based sex worker health initiative be established; and
7 Discussion Paper, p 23
8 Available on-line at:

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3. “Occupation” be included as a protected attribute under section 16 of the Anti-
Discrimination Act 1998 (Tas). 9
The HCLS takes this opportunity to endorse the recommendations made in the Report.
Should new legislation be enacted to provide for the regulation of the sex industry,
information outlining the legal status of sex work must be effectively communicated to
sex workers.
A program dedicated to sex worker welfare is also needed. The HCLS notes the
Department of Health and Human Service advice contained in the Report that Tasmania
is the only jurisdiction in Australia without a dedicated sex worker support service. 10
The HCLS is also supportive of the inclusion of “occupation” as a protected attribute in
section 16 of the Anti-Discrimination Act 1998 (Tas). Whilst the protected attribute of
“lawful sexual activity” already contained in section 16 of the Anti-Discrimination Act
1998 (Tas) ought to be enough to protect sex workers from discrimination on the basis
that they are sex workers, the additional protection that would be afforded by including
“occupation” as a protected attribute would be beneficial.
Should you wish to discuss any aspects of our submission further, please do not hesitate
to contact us on (03) 6223 2500.
Yours sincerely
Hobart Community Legal Service
Per:
Jane Hutchison
Manager
9 Report of the Review into the Sex Industry Offences Act 2005, available on-line at:
,
pp 20-21
10 Ibid at 17