SEX WORK AND THE LAW - HIV/AIDS Data Hub

Each of Australia’s eight states and territories have a different legislative framework for
sex work (see Table above). Australia’s six National HIV/AIDS Strategies implemented since
1989 have encouraged sex work law reform so as to provide a more enabling environment
for health promotion. Jeffreys and Perkins describe the diverse legal environments of
these jurisdictions as follows:
Australia
Sex work in South Australia, Western Australia, and Tasmania is largely criminalised.
Toleration operates in Western Australia, where criminalising legislation has not
been implemented by the police for some time. In South Australia, brothel raids and
criminality has been a regular feature of sex work for over a century. In Tasmania,
brothels are illegal, however private workers are permitted to work legally either by
themselves or in pairs. In Victoria, Queensland and the Northern Territory sex work
is licensed. In those states and territories sex work business owners are required to
undergo probity checks and to license their businesses with an external authority
in order to gain approval to operate. Owners are also required by law to enforce
mandatory HIV and other STI testing of sex workers who work in licensed businesses,
which is a counterproductive and expensive measure. In the Northern Territory sex
workers who work within licensed businesses are also required to undergo probity
checks and to have their sex-work status added to their police record, as a form
of registration. New South Wales has decriminalised brothel, private sex work and
street sex work; legislated bodies that oversee the regulation of other businesses
regulate sex work just like any other work. This includes zoning, industrial relations,
occupational health and safety, tax and more. The Australian Capital Territory has
mostly decriminalised sex work, requiring private sex workers to register. Similarly, in
Victoria private workers are expected to register. 694
Licensing models versus decriminalization
Victoria, Queensland, Northern Territory and Australian Capital Territory all have forms of
licensing or registration of sex workers and/or the premises where sex work occurs. The
governments of Western Australia and New South Wales are proposing to introduce brothel
licensing laws in 2012. Sex worker organizations (e.g., Scarlet Alliance), sexual health
physicians and researchers have expressed serious concerns about licensing models. The
Law and Sex Worker Health (LASH) Team at the National Centre in HIV Epidemiology and
Clinical Research provided the following recommendation to Department of Health of
Western Australia:
Licensing of sex work (‘legalisation’) should not be regarded as a viable legislative
response. For over a century systems that require licensing of sex workers or brothels
have consistently failed. Most sex workers remain unlicensed, so criminal codes remain
in force, leaving the potential for police corruption. Licensing systems are expensive
and difficult to administer, and they always generate an unlicensed underclass. That
underclass is wary of and avoids surveillance systems and public health services. Thus
licensing represents a potential threat to public health... 695
Evidence confirms that decriminalization has been a successful approach in reducing
opportunities for police corruption and improving the coverage of health promotion
693 See: Crofts P., Maher J., Pickering S., Prior J., (2012) Ambivalent Regulation: The Sexual Services Industries in
NSW and Victoria — Sex Work as Work, or as Special Category? Current Issues in Criminal Justice, 23(3):393-412.
694 Jeffreys E., Perkins R., Sex Work, Migration, HIV and Trafficking: Chinese and other Migrant Sex Workers in
Australia Intersections: Gender and Sexuality in Asia and the Pacific, Issue 26, August 2011.
695 Donovan B. et al. (2010) The Sex Industry in Western Australia: A report to the Western Australian
Government, Sydney: University of New South Wales, p.viii.
197