In August last year, Queensland Attorney-General Shannon Fentiman made a formal referral to the Queensland Law Reform Commission (QLRC) to recommend a framework for a decriminalised sex work industry in Queensland.1
The referral follows recent moves by other Australian jurisdictions (notably, Victoria, the Northern Territory and New South Wales) to decriminalise sex work and was the result of a long and hard-fought campaign by sex worker advocates such as DecrimQLD, which for years had argued Queensland’s prostitution laws criminalise simple safety measures for sex workers, encourage excessive policing and expose sex workers to extraordinarily high levels of discrimination.
The QLRC has released a consultation paper, ‘A framework for regulating the sex work industry in Queensland’ (consultation paper), to which Queensland Law Society has responded.
This is the first in a series of articles that details the Society’s response to the QLRC consultation paper and explores how a decriminalised framework for the sex work industry might operate in Queensland. This article sets out the basis for a framework regulating the sex work industry in Queensland and outlines the necessary underlying purposes of such a framework.
Draconian laws, excessive policing and discrimination
The sex work industry in Queensland is currently regulated by the Prostitution Act 1999 (Qld) (Prostitution Act) and Prostitution Regulation 2014 (Qld) (Prostitution Regulation), the Criminal Code 1899 (Qld) (Criminal Code) and the Police Powers and Responsibilities Act 2000 (Qld) (PPRA).
These laws result in sex workers who seek to enact basic safety strategies putting themselves at risk of prosecution. They cannot check in with each other when a client arrives and leaves; employ a driver who is used by another sex worker; or, employ a receptionist to screen clients and manage bookings.
They must work either in a licensed brothel or completely alone, meaning unregulated operations like erotic massage parlours and escort agencies are criminalised. Even working together in the same building or hotel, or messaging a colleague to let them know the sex worker is safe, can lead to a criminal charge of ‘knowingly participating in the provision of prostitution’.2
Essentially, these laws mean sex workers must choose between working safely and working legally.
33 years after the Fitzgerald Inquiry exposed corrupt police conduct in the sex work industry, police remain its primary regulators. The Prostitution Enforcement Taskforce, part of Queensland Police, enforces laws relating to illegal prostitution under the Criminal Code and works with the Prostitution Licensing Authority to undertake probity checks of applicants for brothel licences or managers’ certificates.
Police are empowered under the PPRA to conduct “controlled operations”,3 meaning they are immune from prosecution for requesting and participating in certain illegal activities. There are reports police routinely use these powers to pose as clients, pressure sex workers into offering blacklisted services and then arrest them.4
One sex worker claims police debated whether to charge her with a weapons offence when they found a pair of toy handcuffs.5 And yet, when sex workers are victims of rape or assault, some say they are “practically ignored by the police”.6
Outside the criminal law context, there are myriad other laws that subject sex workers to high levels of discrimination. Under Queensland’s anti-discrimination laws, for example, landlords and accommodation providers can lawfully evict sex workers, refuse them housing or treat them ‘unfavourably’ in connection to accommodation, including by requiring them to pay higher rents or room fees.7
This is so if a person simply ‘reasonably believes’ a person is using or intends to use the accommodation for sex work. Further, discrimination against sex workers in work involving the care or instruction of minors is also permitted.8
The continued criminalisation and excessive policing of the sex work industry fuels stereotypes and discrimination, framing the sex work industry as a problem to be monitored and restricted. These laws are informed by a “legacy of fear and moral arguments against sex work rather than being based on evidence, best practice and prioritising sex workers’ safety and right to work”.9
It is in this context that the Society responded to the QLRC consultation paper, which asked a series of questions about a framework for regulating the sex work industry in Queensland.
Supporting the rights of sex workers and the legitimacy of sex work
QLS advocates for the development of good law. In doing so, it supports the creation of laws which have sufficient regard to individual rights and liberties, seek to eliminate discrimination and disadvantage, and provide access to justice for all members of society. This includes Queensland’s sex workers.
The Society supports decriminalisation of the sex work industry to recognise sex work as legitimate work and ensure sex workers have the same rights, protections and obligations as other workers. It emphasises that any legislative framework for decriminalisation of sex work in Queensland must be informed by sex workers themselves to ensure reforms are fit for purpose and free of any unintended consequences.
QLS also recognises that decriminalisation does not mean no regulation, but uses the term ‘legislative framework’ to encompass any legislation or regulation resulting from the decriminalisation of sex work in Queensland.
The purpose of a legislative framework for sex work in Queensland
When thinking about a decriminalised sex work industry in Queensland, there may be a temptation to simply adopt another state or territory’s model, on the basis it has passed through an Australian Parliament and so it may be regarded as “politically feasible”.10
Alternatively, a particular model may be seen as the starting point for reform with a ‘plus/minus’ approach taken of removing or adding components of the model.11 QLS echoes the QLRC comments in the consultation paper:
“Local differences mean we cannot assume what happens in one jurisdiction will also happen here. However, research from other places about what works well and what does not can help us design our framework. Much will depend on the features of the framework and how it is implemented.”12
The Society considers the appropriate starting point for reform to be a legislative framework based on appropriate values and objectives that underpin laws of this kind. As others have commented, “political compromise, while often necessary for law reform, can lead to legislation failing to reflect its overall policy objectives in important respects”.13 Any resulting regulations or restrictions must be justifiable by reference to these values and objectives.
The Society argues the main purposes of any legislative framework must be to:
decriminalise sex work in Queensland and legalise contracts in relation to sex work
recognise sex work as work
protect sex workers’ human rights under the Human Rights Act 2019 (Qld)
enhance sex worker, client and public health and safety
prohibit exploitation of sex workers and enshrine the right of sex workers to refuse to perform sex work
enable the sex work industry to operate in accordance with the laws of the state and the Commonwealth as they apply to all individuals and businesses generally, including laws governing employment, workplace health and safety, workers’ compensation and rehabilitation, planning and taxation, and
reduce stigma of, discrimination against, and harm to, sex workers.
The need for evidence-based policy to challenge entrenched stigma
The development of any legislative framework for sex work in Queensland must reflect evidence-based policy that recognises and challenges the long-standing stigma associated with sex work: “Stigma, deliberately and surreptitiously, shapes laws, regulations, practices, institutions and policies, it undermines the effectiveness and fairness of the regulation of [sex work], and, in general, it results in the social marginalisation of sex workers.”14 Scholars recognise that ‘stigma invites control’ in policy responses to sex work and sex workers:
“In many countries this results in the outright prohibition of [sex work], but one of the pernicious consequences of the persistence of stigma is that even the regulation or decriminalisation of [sex work] does not guarantee a lessening of the urge to control. … [T]he tenacity of stigma is the mechanism by which regulatory approaches to [sex work] generate negative, unintended consequences and progressive policies that get reversed.”15
With this in mind, QLS has urged the QLRC to consider how the sex work industry can operate in accordance with the general laws of the state and the Commonwealth as they apply to all individuals and businesses generally, where regulatory responses should be limited to addressing specific issues identified by subject matter experts.
What should a new legislative framework look like?
The Society generally agrees with the QLRC’s observations that a decriminalised framework should:
- remove criminal laws and police powers specific to sex work
- replace sex work licensing laws
- cover sex work under general laws and regulatory mechanisms that apply to other businesses and workers
- change laws to address unfair discrimination against sex workers
- recognise the general criminal law applies to everyone, including sex workers, and
- include sex workers as key partners in law and policy reforms that affect them.16
Sex workers and sex work businesses who operate in accordance with general laws and regulations should not fear arrest or prosecution, and sex workers should not have to choose between working safely or legally.
Any particular regulations or laws directed at sex workers and sex work businesses (for example, those relating to public health and safety measures, public amenity etc.) should be based on the most up-to-date evidence and should not be so administratively or financially burdensome as to deter workers and businesses from operating legally. Any legislative framework should remove police as the primary regulators of the sex work industry.
In Queensland, this would mean:
- repealing the sex work offences in chapter 22A of the Criminal Code that are not needed
- repealing all or parts of the Prostitution Act and Prostitution Regulation
- keeping the offences in chapter 22A of the Criminal Code or the Prostitution Act that may still be needed, with necessary changes, to protect against commercial sexual exploitation
- considering the role of police and changing sections of the PPRA that are not needed
- making any consequential changes to general laws that apply to workers and businesses so they apply in a suitable way to sex work, and
- including any new laws or other measures that might be needed to address particular issues and make sure rules and protections apply in the best way.
A new definition of ‘sex work’
The Society has also urged the QLRC to address the need for a contemporary and appropriate definition of ‘sex work’ that moves away from the current definition of ‘prostitution’ which references “the use of 1 person by another for his or her sexual satisfaction involving physical contact”.17
This definition ignores issues of consent and does not reflect modern ideas of sex work as a service. Consideration could be given to the definition in place in the Northern Territory, which defines ‘sex work’ as “the provision by a person of services that involve the person participating in sexual activity with another person in return for payment or reward”.18
In developing a new definition of ‘sex work’, regard will need to be had to the existing regulation of certain entertainment venues (for example, strip clubs) and whether it is necessary or desirable to include or exclude other non-physical sex work (for example, sex work done via web cam or other technologies) from the definition.
The QLRC is due to provide its final report, including any draft legislation required to give effect to its recommendations, to the Attorney-General by 27 November 2022.
The next article in this series sets out the Society’s recommendations in relation to the licensing of sex work business operators and individual sex workers.
Dr Brooke Thompson is a Queensland Law Society Policy Solicitor.
1 Queensland Law Reform Commission, ‘Terms of Reference: Queensland’s laws relating to the regulatory framework for the sex work industry’ (27 August 2021).
2 Criminal Code 1899 (Qld) s229H.
3 Police Powers and Responsibilities Act 2000 (Qld) s258.
4 Ben Smee, ‘Sex workers in Queensland must choose: be safe or be legal’, The Guardian (online, 7 March 2019); Benedict Brook, ‘Sex workers in Queensland accuse police of entrapping them into breaking the law’, news.com.au(online, 22 November 2019); Matt Eaton, ‘Queensland sex worker advocates back abolition of licensing to end police pressure and improve safety’, ABC News (online, 13 May 2022).
5 Ben Smee, ‘Sex workers in Queensland must choose: be safe or be legal’, The Guardian (online, 7 March 2019).
7 Anti-Discrimination Act 1991 (Qld) s106C.
8 Anti-Discrimination Act 1991 (Qld) s28(1).
9 Ben Smee, ‘Sex workers in Queensland must choose: be safe or be legal’, The Guardian (online, 7 March 2019).
10 Ben White and Lindy Willmott identified this process of reform in relation to voluntary assisted dying legislation in Queensland: Ben White and Lindy Willmott, ‘A Model Voluntary Assisted Dying Bill’ (2019) 7(2) Griffith Journal of Law & Human Dignity 1, 3.
11 Ibid 4.
12 Queensland Law Reform Commission, ‘A framework for a decriminalised sex work industry in Queensland’ (Consultation Paper WP 80, April 2022) 35 [5.25].
13 White and Willmott (n10) 4.
14 Hendrik Wagenaar, Helga Amesberger and Sietske Altink, Designing Prostitution Policy: Intention and Reality in Regulating the Sex Trade (Policy Press, 2017) 29.
15 Ibid 32.
16 Queensland Law Reform Commission (n12) 47.
17 Criminal Code 1899 (Qld) s229E(1)(d).
18 Sex Industry Act 2019 (NT).