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Sex Work Act 1992 (Australia)

An Act to regulate certain aspects of sex work

Part 1 Preliminary

!- Name of Act

This Act is the Sex Work Act 1992.

2 Dictionary

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘commercial brothel, for part 2 (Registration)—see section 5.’ means that the term ‘commercial brothel’ is defined in that section for part 2.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

3 Notes

A note included in this Act is explanatory and is not part of this Act.

Note See Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

3A Offences against Act—application of Criminal Code etc

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to the following offences against this Act (see Code, pt 2.1):

s 12 (Registration notice etc to be given to commissioner—commercial operators)

 s 13 (Annual notice to be given to commissioner—commercial operators)

 s 14 (Other notices to be given to commissioner—commercial operators and former commercial operators)

s 20 (Causing child to provide commercial sexual services etc)

 s 26 (Medical tests and examinations)

 s 26A (Commercial operator must provide health and safety equipment).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

4 Objects

The objects of the Act are as follows:

 (a) to safeguard public health;

 (b) to promote the welfare and occupational health and safety of sex workers;

 (c) to protect the social and physical environment of the community by controlling the location of brothels;

 (d) to protect children from sexual exploitation.

Part 2 Registration

Division 2.1 Interpretation

5 Definitions for pt 2

In this part:

commercial brothel means a brothel other than a sole operator brothel.

commercial escort agency means an escort agency other than a sole operator escort agency.

disqualifying offence—see section 6.

interested person, in relation to a commercial brothel or commercial escort agency, means any of the following:

 (a) each operator;

 (b) each owner who is an individual;

 (c) each director of an owner that is a corporation.

police report, for a person, means a report by a police officer or the Australian Criminal Intelligence Commission about the person’s criminal record made on a form that—

 (a) contains a consent by the person to a police officer or the Australian Criminal Intelligence Commission making inquiries about the person’s criminal record; and

 (b) contains imprints of the fingers and palms of both hands of the person.

Note If a form is approved under s 30 (Approved forms) for a police report, the form must be used.

required police report, in relation to a commercial brothel or commercial escort agency, means a police report for each interested person in relation to the brothel or escort agency.

sole operator brothel means a brothel—

 (a) the premises of which are premises used by a single sex worker; and

 (b) the business of which is solely owned and operated by the single sex worker.

sole operator escort agency means an escort agency solely owned and operated by a single sex worker.

the operator, of a commercial brothel or commercial escort agency—

 (a) if there is only 1 operator of the brothel or escort agency—the operator; or

 (b) if there are 2 or more operators of the brothel or escort agency—each operator.

6 Meaning of disqualifying offence

 (1) In this part:

disqualifying offence means—

 (a) an offence against any of the following:

 (i) a provision of the Crimes Act 1900 mentioned in schedule 1;

 (ii) a provision of this Act mentioned in schedule 2;

 (iii) the Crimes Act 1900, section 114B (Money laundering);

 (iv) the Criminal Code, chapter 6 (Serious drug offences); or

Note A reference to an offence against a Territory law includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189).

 (b) an offence against a law of the Commonwealth, a State or another Territory corresponding to an offence mentioned in paragraph (a); or

 (c) an offence against a law of the Commonwealth, a State or another Territory corresponding to a provision of the Criminal Code, part 2.4 (Extensions of criminal responsibility) or section  717 (Accessory after the fact) in relation to an offence mentioned in paragraph (a); or

 (d) an offence against the Migration Act 1958 (Cwlth), section 232A (Organising bringing groups of non-citizens into Australia), section 233 (1) (about bringing etc non-citizens into Australia in contravention of the Act) or section 233A (Other offences relating to groups of non-citizens etc); or

 (e) an offence against a Commonwealth law corresponding to a provision of the Criminal Code, part 2.4 (Extensions of criminal responsibility) or section 717 (Accessory after the fact) in relation to an offence mentioned in paragraph (d); or

 (f) an offence against a law of a foreign country of a kind mentioned in schedule 3.

 (2) To remove any doubt, this section applies to offences committed before or after the commencement of this section.

Division 2.2 Register and notices

11 Register

 (1) The commissioner must keep a register of information provided by operators of commercial brothels and commercial escort agencies in notices under this part.

 (2) Subsection (1) does not require the commissioner to include or keep in the register information about a commercial brothel or commercial escort agency that has ceased to operate.

 (3) The commissioner must make information in the register available for public inspection.

12 Registration notice etc to be given to commissioner—commercial operators

 (1) A person commits an offence if—

 (a) the person is an operator of a commercial brothel or commercial escort agency; and

 (b) both of the following are not given to the commissioner at least 7 days before the day the brothel or escort agency begins to operate:

 (i) a registration notice;

 (ii) a required police report in relation to the brothel or escort agency.

Maximum penalty:  100 penalty units, imprisonment for 1 year or both.

 (2) In this section:

registration notice, in relation to a commercial brothel or commercial escort agency, means a written notice containing the following particulars in relation to the brothel or escort agency:

 (a) its business name (if any) and address;

 (b) the name and home address of each person in day-to-day control of the brothel or escort agency;

 (c) if the owner (or an owner) of the brothel or escort agency is an individual—the name and home address of each individual who is an owner;

 (d) if the owner (or an owner) of the brothel or escort agency is a corporation—the following for each corporation that is an owner:

 (i) its name and business address;

 (ii) the name and home address of each director and each shareholder;

 (e) for each interested person in relation to the brothel or escort agency—a statement about whether or not the person has been convicted, or found guilty, of a disqualifying offence.

Note 1 If a form is approved under s 30 for a notice, the form must be used.

Note 2 A fee may be determined under s 29 for a notice under this section.

13 Annual notice to be given to commissioner—commercial operators

 (1) A person commits an offence if—

 (a) the person is an operator of a commercial brothel or commercial escort agency; and

 (b) an annual notice for the year for the brothel or escort agency is not given to the commissioner before 1 October of that year.

Maximum penalty:  100 penalty units, imprisonment for 1 year or both.

 (2) In this section:

annual notice, in relation to a commercial brothel or commercial escort agency, means a written notice containing the following particulars in relation to the brothel or escort agency:

 (a) its business name (if any) and address;

 (b) the name and home address of each person in day-to-day control of the brothel or escort agency;

 (c) if the owner (or an owner) of the brothel or escort agency is an individual—the name and home address of each individual who is an owner;

 (d) if the owner (or an owner) of the brothel or escort agency is a corporation—the following for each corporation that is an owner:

 (i) its name and business address;

 (ii) the name and home address of each director and each shareholder;

 (e) for each interested person in relation to the brothel or escort agency—a statement about whether or not the person has been convicted, or found guilty, of a disqualifying offence.

Note 1 If a form is approved under s 30 for a notice, the form must be used.

Note 2 A fee may be determined under s 29 for a notice under this section.

14 Other notices to be given to commissioner—commercial operators and former commercial operators

 (1) A person commits an offence if—

 (a) the person is an operator of a commercial brothel or commercial escort agency; and

 (b) any information given to the commissioner in a notice under this division changes; and

 (c) written notice of the new information is not given to the commissioner within 7 days after the day the information changes.

Maximum penalty:  100 penalty units, imprisonment for 1 year or both.

 (2) A person commits an offence if—

 (a) the person is an operator of a commercial brothel or commercial escort agency; and

 (b) the brothel or escort agency stops operating; and

 (c) written notice that the brothel or escort agency stopped operating is not given to the commissioner within 7 days after the last day the brothel or escort agency operated.

Maximum penalty:  100 penalty units, imprisonment for 1 year or both.

Division 2.3 Interested people—offences

15 Interested person—disqualifying offence

 (1) A person who has been convicted or found guilty of a disqualifying offence must not—

 (a) become an interested person in relation to a commercial brothel or commercial escort agency; or

 (b) continue to be an interested person in relation to a commercial brothel or commercial escort agency.

Maximum penalty:  100 penalty units, imprisonment for 1 year or both.

 (2) Any other interested person (the other interested person) in relation to a commercial brothel or commercial escort agency commits an offence if—

 (a) an interested person mentioned in subsection (1) becomes, or continues to be, an interested person in relation to the brothel or escort agency; and

 (b) the other interested person knows that, or is reckless as to whether, a person who becomes, or continues to be, an interested person in relation to the brothel or escort agency is an interested person mentioned in subsection (1).

Maximum penalty:  100 penalty units, imprisonment for 1 year or both.

16 Police report to be given before person becomes interested person

A person must not, without reasonable excuse, fail to give the commissioner a police report for the person at least 7 days before the person becomes an interested person in relation to a commercial brothel or commercial escort agency.

Maximum penalty:  100 penalty units, imprisonment for 1 year or both.

Part 3 Offences

17 Duress

 (1) A person must not, for the purpose of inducing a person to provide or to continue to provide commercial sexual services—

 (a) intimidate, assault or threaten to assault any person; or

 (b) supply or offer to supply a controlled medicine or prohibited substance to any person; or

 (c) make a false representation or otherwise act fraudulently.

Maximum penalty:  imprisonment for 6 years.

 (2) A person must not—

 (a) intimidate, assault or threaten to assault a person; or

 (b) supply or offer to supply a controlled medicine or prohibited substance to a person;

for the purpose of inducing any person to provide or continue to provide him or her with payment derived, directly or indirectly, from the provision of commercial sexual services.

Maximum penalty:  imprisonment for 6 years.

 (3) In this section:

controlled medicine—see the Medicines, Poisons and Therapeutic Goods Act 2008, section 11.

prohibited substance—see the Medicines, Poisons and Therapeutic Goods Act 2008, section 13.

18 Brothels—other than in prescribed location

 (1) A person must not operate a brothel other than in a prescribed location.

Maximum penalty:  100 penalty units, imprisonment for 1 year or both.

 (2) Each owner of a brothel that operates other than in a prescribed location commits an offence.

Maximum penalty:  100 penalty units, imprisonment for 1 year or both.

 (3) This section does not apply to an escort agency or premises used by a single sex worker.

19 Soliciting

 (1) A person must not, for the purpose of offering or procuring commercial sexual services, accost any person, or solicit or loiter, in a public place.

Maximum penalty:  20 penalty units.

 (2) A person must not, for the purpose of offering or procuring commercial sexual services, accost a child in a public place.

Maximum penalty:  imprisonment for 3 years.

 (3) In this section:

public place means any street, road, public park, reserve, or any building, premises or other place that the public are entitled to use or that is open to, or used by, the public (whether on payment or otherwise).

20 Causing child to provide commercial sexual services etc

 (1) A person commits an offence if—

 (a) the person causes, permits, offers or procures a child to provide commercial sexual services; and

 (b) the child is under 12 years old.

Maximum penalty:  1 500 penalty units, imprisonment for 15 years or both.

 (2) Absolute liability applies to subsection (1) (b).

 (3) A person commits an offence if—

 (a) the person causes, permits, offers or procures a child to provide commercial sexual services; and

 (b) the child is 12 years old or older.

Maximum penalty:  1 000 penalty units, imprisonment for 10 years or both.

 (4) Absolute liability applies to subsection (3) (b).

21 Proceeds of commercial sexual services by child

 (1) A person must not receive a payment that he or she knows, or could reasonably be expected to have known, is derived, directly or indirectly, from commercial sexual services provided by a child.

Maximum penalty:  imprisonment for 7 years.

 (2) Subsection (1) does not apply in relation to a payment received in the ordinary course of a business other than sex work.

22 Age of child—burden of proof

It is a defence to a prosecution under section 19 (2) or 20 if it is established that the defendant—

 (a) took reasonable steps to ascertain the age of the child concerned; and

 (b) believed on reasonable grounds that the child had attained 18 years of age.

23 Child on premises

An operator or owner of a brothel or escort agency must not, without reasonable excuse, permit a child to be on the premises.

Maximum penalty:  20 penalty units.

26 Medical tests and examinations

 (1) A person commits an offence if—

 (a) the person is an operator or owner of a brothel or escort agency; and

 (b) the person fails to take reasonable steps to ensure that 1 or more of the following is not used to induce someone else to believe that the sex worker is not infected with a sexually transmissible infection:

 (i) the fact that a sex worker had a medical test;

 (ii) the fact that a sex worker had a medical examination by a doctor or nurse practitioner;

 (iii) the result of a sex worker’s medical test;

 (iv) the result of a sex worker’s medical examination by a doctor or nurse practitioner.

Maximum penalty:  20 penalty units.

 (2) A sex worker commits an offence if—

 (a) the sex worker tells someone else—

 (i) that the sex worker had a medical test; or

 (ii) that the sex worker had a medical examination by a doctor or nurse practitioner; or

 (iii) the result of the sex worker’s medical test; or

 (iv) the result of the sex worker’s medical examination by a doctor or nurse practitioner; and

 (b) the sex worker—

 (i) intends the person to believe that the sex worker is not infected with a sexually transmissible infection; or

 (ii) is reckless about whether the person believes that the sex worker is not infected with a sexually transmissible infection.

Maximum penalty:  20 penalty units.

 (3) An offence against subsection (1) is a strict liability offence.

 (4) This section does not apply to an operator or owner of a brothel or escort agency if the operator or owner uses a sex worker’s medical test, a sex worker’s medical examination by a doctor or nurse practitioner, or the result of a sex worker’s medical test or medical examination by a doctor or nurse practitioner, to satisfy himself or herself that the sex worker is not infected with a sexually transmissible infection.

 (5) In this section:

medical test means the taking of a sample of tissue, blood, urine or other bodily material for medical testing.

26A Commercial operator must provide health and safety equipment

 (1) A person commits an offence if the person—

 (a) is the operator of a commercial brothel or commercial escort agency; and

 (b) fails to provide a sex worker employed at the brothel, or from the escort agency, prophylactics in sufficient quantity to allow the sex worker to comply with section 27 (3).

Maximum penalty:  40 penalty units.

 (2) A person commits an offence if the person—

 (a) is the operator of a commercial brothel or commercial escort agency; and

 (b) fails to—

 (i) provide a sex worker employed at the brothel, or from the escort agency, personal protective equipment; and

 (ii) take reasonable steps to ensure the sex worker uses the personal protective equipment to minimise the risk to the sex worker’s health or safety.

Maximum penalty:  40 penalty units.

 (3) A person commits an offence if the person—

 (a) is the operator of a commercial brothel or commercial escort agency; and

 (b) provides a sex worker employed at the brothel, or from the escort agency, prophylactics or personal protective equipment; and

 (c) charges, or imposes a levy on, the sex worker for the prophylactics or personal protective equipment.

Maximum penalty:  40 penalty units.

 (4) In this section:

commercial brothel—see section 5.

commercial escort agency—see section 5.

personal protective equipment, in relation to sex work, means anything used or worn by a sex worker to minimise risk to the sex worker’s health or safety from engaging in sex work.

Examples—personal protective equipment

dental dams, latex gloves, water-based lubricants, sponges

27 Use of prophylactics

 (1) Each operator and owner of a brothel or escort agency must take reasonable steps to ensure that no person provides or receives commercial sexual services at the brothel or escort agency, being services which involve vaginal, oral or anal penetration by any means, unless a prophylactic is used.

Maximum penalty:  50 penalty units.

 (2) An operator or owner of a brothel must not discourage the use of prophylactics at the brothel.

Maximum penalty:  100 penalty units.

 (3) A person must not, at a brothel or elsewhere, provide or receive commercial sexual services that involve vaginal, oral or anal penetration by any means unless a prophylactic is used.

Maximum penalty:  50 penalty units.

Note It is also an offence not to take reasonable precautions against transmitting a notifiable condition (see Public Health Regulation 2000, s 21 (1)).

 (4) A person must not, at a brothel or elsewhere, while providing or receiving commercial sexual services that involve oral, anal or vaginal penetration—

 (a) misuse, damage or interfere with the efficacy of any prophylactic used; or

 (b) continue to use a prophylactic that he or she knows, or could reasonably be expected to know, is damaged.

Maximum penalty:  50 penalty units.

 

Part 4 Miscellaneous

28 Entry by police

A police officer may enter a brothel or escort agency if the officer believes on reasonable grounds that—

 (a) an offence against section 20, 21 or 23 has been, is being or is likely to be committed on the premises; and

 (b) it is necessary to enter the premises for the purpose of preventing the commission or repetition of such an offence, investigating such an offence or apprehending an offender.

29 Determination of fees

 (1) The Minister may determine fees for this Act.

Note The Legislation Act contains provisions about the making of determinations and regulations relating to fees (see pt 6.3).

 (2) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

30 Approved forms

 (1) The commissioner may approve forms for this Act.

Note For other provisions about forms, see Legislation Act, s 255.

 (2) If the commissioner approves a form for a particular purpose, the approved form must be used for that purpose.

 (3) An approved form is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

32 Regulation-making power

 (1) The Executive may make regulations for this Act.

Note Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act.

 (2) The regulations may make provision in relation to the following matters:

 (a) the cleanliness of brothels;

 (b) the provision, use and laundering of towels and other items of linen;

 (c) hygiene standards for swimming pools, spa baths and sexual aids used in brothels;

 (d) provision of, and hygiene standards for, showers and washing and toilet facilities in brothels;

 (e) the disposal of prophylactics used in brothels;

 (f) the inspection of brothels and escort agencies to ensure compliance with this Act;

 (g) the provision of information relating to sexually transmissible infections to sex workers employed at brothels or from escort agencies and to clients;

 (h) safeguarding the health of clients and sex workers employed at brothels and from escort agencies;

 (i) the provision of assistance to sex workers in gaining access to job retraining, job skills improvement schemes and further education;

 (j) the size, form and content of advertisements relating to brothels and escort agencies.

 (3) The regulations may also prescribe offences for contraventions of the regulations and prescribe maximum penalties of not more than 10 penalty units for offences against the regulations.