SUBMISSION TO THE COMMUNITY DEVELOPMENT COMMITTEE INQUIRY INTO THE REGULATION OF THE SEX INDUSTRY IN TASMANIA
1	BACKGROUND
1.1	Hobart Community Legal Service Inc. (HCLS) is a voluntary not-for-profit community organisation funded by the Federal Attorney-General’s Department. HCLS relies upon a paid workforce of seven (7) persons and a volunteer workforce of about seventy (70) persons to provide the following roles: free legal casework community legal education law reform and advocacy.
1.2	HCLS conducts its services from shopfront locations in the CBD and Bridgewater/Gagebrook areas. Services include: welfare rights advocacy child support (carer parents) evening advice prisoner advice visits court support.
1.3	In this brief submission, we will simply summarise the work which we have undertaken to-date on this issue, comment briefly on areas of concern to the Committee, and recommend a course of action which we believe to be most appropriate to addressing the needs of the sex work industry as well as the wider community.
2	SUMMARY OF OUR WORK TO-DATE
2.1	HCLS has been discussing the need for legislation to regulate the sex industry since mid-1998. We have examined the legal situation in other States and Territories, and consulted with other non-government organisations and representatives of the sex-work industry, in attempting to determine a preferred position and legal basis for reform in Tasmania.
2.2	We have been aware of the contentious nature of this issue, and of the potential dangers of publicly advocating on it. Following our first media comment in September 1998 (see Attachment F), a local journalist alerted the HCLS Manager to the threatening call he had received for running a story sympathetic to reform of the industry. This threat evidently came from that section of the industry which benefits more from the absence of regulation and the corresponding greater potential for engaging in more exploitative practices of its workers. Sera Pinwill has noted "... incidences of violence toward sex workers by operators. A recent report undertaken by Tasmanian Sexual Health Branch of the Health Department found that many workers viewed violence, intimidation and threats as "occupational hazards". A worker/operator who spoke out in favour of decriminalisation had her garage firebombed and was assaulted by hired thugs." This is one manifestation of the current ‘hidden’ nature of the industry which demands reform and regulation, and demonstrates the capacity for concealed violence and exploitation within that industry.
2.3	We have been especially concerned to ensue that legislation is appropriate to the Tasmanian context, that is, that it reflects current conditions concerning sex work and the legitimate needs of sex workers and community expectations and interests concerning public health (eg. re the transmission of communicable diseases) and social safeguards (eg. re the protection of minors). We have also noted the trends associated with the increasingly frequent visits to Hobart ports of naval ships, and the associated need to take precautions against the entry of unregulated interstate operators and workers at those times, and the increased ‘attraction’ of organised control and exploitation of the industry within Tasmania, as well as the greater risks to public health (which, given the nature of this issue, are exponential risks in terms of both public health and demands on public resources).
2.4	HCLS has particularly noted useful preparatory work in this area, in particular the comparison of the legal situation in the various states/territories ("Prostitution Laws in Australia": included as Attachment A) and draft legislation ("Tasmanian Sex Industry Bill 1998: ‘Discussion Draft Only’": see Attachment B). Both of these documents have been prepared by Scarlet Alliance, a national collective of sex workers. HCLS forwarded copies of each —- along with the consequential Bill at Attachment C — to the previous Community Development Committee last year. We agreed that the Bill, whilst needing amendment, provided a sound and appropriate basis upon which to formulate a Bill for consideration by the House of Assembly.
2.5	To that end, HCLS initiated discussions with selected NGOs and representatives of the sex work industry. An initial meeting was held in September 1998, between HCLS, TasCARD, the Sexual Health Branch (Tasmanian Government) and a representative of Sex Workers of Tasmania (SWOT) (southern region). That meeting agreed to use the above-mentioned Bill as the basis of further discussion, and to more actively pursue law reform in this regard.
2.6	Consequently, HCLS wrote to the Attorney-General on 8 October 1998 to urge him to introduce into the House a Bill based on the provisions of the ‘Discussion Draft Only’ document, and to emphasise HCLS’s support for such action. On 9 November 1998, the Attorney-General replied, seeking copies of the papers at Attachments B and C, and advising of his decision to seek the views of your Committee.
2.7	On 28 January 1999, HCLS convened a second meeting, involving those present at the previous meeting, plus SWOT representatives from each of the north and north-west of the state, the Tasmanian Council of Social Service and Family Planning Tasmania. At this meeting, the ‘Bill’ was discussed in detail, and a number of amendments to its text agreed to and wider concerns noted. On 19 February 1999, HCLS wrote to inform the Attorney-General of these discussions. Consistent with the Attorney-General’s subsequent reply, the Community Development Committee publicly invited submissions on 3 March 1999.
3	COMMENTS ON PRIMARY AREAS OF CONCERN
3.1	A summary of the laws in Tasmania and other states/territories is at Attachment A . Tasmanian laws governing the sex industry have been described as follows: "At present, workers can legally work solely from home or do escorts, however, it is illegal to rent premises to prostitutes. Procuring and brothel work is illegal, as is living off the earnings of a prostitute and managing a brothel. It is worth noting that much of the violence directed at Tasmanian workers happens in illegal brothels." The Sexual Health Branch has noted that "The legal anomaly is that a person can be a sex worker but cannot work within a house of ill-repute, yet Local Government by-laws and regulations register such businesses on a yearly basis."
3.2	The current anomalous and outdated legal treatment of the sex industry in Tasmania needs to be addressed. That the present criminal provisions are rarely enforced is no defence for the status quo to prevail. With respect to the specific areas of concern to this Inquiry, HCLS defers to the evidence and arguments of agencies and personnel with more direct expertise, such as SWOT, Scarlet Alliance, TasCARD and the Sexual Health Branch. This is particularly so for the first three concerns of the Inquiry (safeguarding public health, the health and safety of sex workers, the location of brothels).
3.3	With regard to children, we note that accurate information on their involvement in the sex industry is difficult to ascertain. Nevertheless, there is sufficient indicative or anecdotal evidence that this is a serious and growing problem. The two main factors appear to be demand by minority client groups for under-age sex workers, and financial pressures on far too many young people suffering unemployment, inadequate access to social security and poor family support networks. A typical report in this regard is that carried on the front page of The Mercury on 25 November 1998: "Tassie child sex shock: Nationwide report highlights state’s under-age prostitutes". According to that article, "Tasmanian children as young as 10 are regularly turning to prostitution to swap or pay for food, drugs, clothes and rent, a major national inquiry has found. As many as 140 Tasmanians under 18 are child prostitutes. Seven of those are aged between 10 and 12, six of them boys. ... [M]ost of Tasmania’s child prostitutes were homeless, unemployed and too young to receive any form of income but still had bills for rent, food and often drugs and alcohol to pay. There were four cases of Tasmanian teenagers selling sex to buy clothes." That report also pointed out that 21 child welfare agencies in Tasmania were aware of children involved in commercial sexual activity, including 40 reported cases of child prostitutes aged between 13-15.
3.4	The proposed Bill at Attachment B specifically provides a penalty of up to seven years imprisonment for any person who causes or permits a child to provide commercial sexual services (section 10) and from receiving any payment derived, "directly or indirectly", from such services (section 11). Section 12 provides a ground for defence to these provisions (although there is an incorrect reference in it to the relevant section/s).
3.5	Section 13 of Attachment B provides that a brothel operator "shall not, without reasonable excuse, permit a child to be on the premises". This provision acknowledges that there may be special circumstances whereby a child may be on such premises, but places the onus on the operator to demonstrate that this is on reasonable grounds. Regardless, the provisions of sections 10 and 11 apply.
3.6	One area of potential inconsistency relates to the treatment of 17 year old persons. Attachment B defines a child as a person aged under 18 years of age, although the age of consent for sexual intercourse is 17 years (Criminal Code Act 1924, s 124). However, consent by a child to sexual intercourse is a defence in two situations: where the young person is 15 years of age or older and the accused person is not more than 5 years older where the young person is 12 years of age or older and the accused person is not more than 3 years older. The consent of a child under 12 years of age is never a defence. Mistake as to age is a defence if the accused person believed on reasonable grounds that the young person was at least 17 years of age.
3.7	With respect to commercial sexual services, HCLS believes that legislation should make a distinction from non-commercial sexual relationships. In this regard, legal provisions should be clearer and no less stringent. It would therefore seem preferable to provide that persons meeting the provisions of the Criminal Code Act 1924 for the age of consent be able to engage in sex work and to use such services, whilst specifically prohibiting those aged under the age of seventeen from either purchasing or providing such services. Attachment E proposes that the provisions of Attachment B be amended accordingly; the onus of responsibility remains on operators with regard to those providing services.
3.8	The adoption of a Bill along the lines of that at Attachment B requires consequential amendments to other Tasmanian legislation, specifically the Police Offences Act 1935 and the Criminal Code 1924. The requisite amendments are presented in the Sex Industry (Consequential Amendments) Bill 1998, at Attachment C, and are considered self-evident and self-explanatory.
4	CONCLUSIONS AND RECOMMENDATIONS
4.1	HCLS believes that law reform to regulate the sex industry is timely, if not well overdue. We have formed this view following our examination of the current legal framework both here and interstate, our consideration of draft enabling legislation, and our consultations with other non-government organisations and with representatives of the sex work industry in Tasmania.
4.2	Tasmania needs to ensure that the sex work industry is regulated within a constructive environment which protects the health and industrial rights of its workers and public safety of its clients, prohibits the employment or use of children within the industry, restricts the capacity for exploitative control of the industry by pimps and other unwanted interests, submits brothels to local planning controls and regulations (especially through their more explicit treatment as commercial operations), encourages stronger links between sex workers and public sexual health agencies, and eliminates coercive practices in a sex worker’s entry to or exit from the industry (eg. via controlling financial arrangements such as the payment of bonds, or exposure to illicit drug use/dependence).
4.3	The present legal framework fails to provide the necessary constructive regulatory environment for the industry. It therefore also fails to adequately serve public health standards and necessary community standards of protection. Narrow — even if well-meaning — minority interests urging maintenance of the status quo, or the adoption of even more stringent prohibitions, simply serve — intentionally or otherwise — to sanction, if not encourage, increasing public health risks, denial of individual liberties, absence of due protection of those at risk of exploitation, and withholding of essential access to mainstream services. We believe that adoption of legislation along the lines of that at Attachments B and C is in the best interests of the industry (workers, operators and clientele alike) and of the wider community.
4.4	HCLS therefore urges the Community Development Committee to adopt the following recommendations: that the Sex Industry Bill 1998 (Attachment B) be adopted as the basis for a Bill for introduction to the House of Assembly (along with the consequential amendments at Attachment C) that that document be duly amended consistent with the proposals emerging from our consultations and deliberations of that Bill, as per Attachment D that the Attorney-General be requested to introduce the resultant Bill into the House of Assembly no later than the 1999 Spring Session of Parliament. 23 April 1999 Attachments (Not Included on Website Version) Prostitution Laws in Australia (extract from Sera Pinwill, "Law Reform in the Australian Sex Industry", report to Australian Federation of AIDS Organisations, Scarlet Alliance, May 1998) Sex Industry Bill 1998 (‘Discussion Draft Only’) Sex Industry (Consequential Amendments) Bill 1998 Proposed Amendments to Sex Industry Bill 1998 Tasmania Sex Industry Bill 1998 ‘Discussion Draft Only’: Comments & Proposed Amendments (report of meeting held at HCLS, 28 January 1999) HCLS/TasCARD Joint Media Release, 24 September 1998 HCLS Media Release, 12 January 1999: "Attorney-General Supported in Call for Reform of Sex Industry"
HCLS resolved in mid-1998 to canvass law reform of the sex industry in Tasmania, jointly with the Tasmanian Council for AIDS and Related Diseases (TasCARD). This primarily resulted from our awareness of the shortcomings of state-based legislation in this regard, of increasing grounds for rectifying those shortcomings, and of preparatory work in this area by the sex work industry itself. For such reasons, HCLS welcomes this Inquiry, and the opportunity which it provides for facilitating the adoption of enabling legislation which is timely, appropriate and purposeful. Back to News & Articles