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Is prostitution or sex work legal in Australia? Prostitution legislation is a state and territory responsibility. Each state and territory have their own prostitution laws regarding sex work. In Australia, New South Wales (NSW), Victoria, and the Northern Territory decriminalised prostitution or sex work. This article discusses legal matters pertaining to prostitution laws or sex work in NSW.
History of Prostitution and Sex Work in NSW
International cooperation on commercial sex occurred when the United Nations General Assembly adopted a convention for the suppression of prostitution. In Australia, New South Wales has the most liberal legislation on sex work, with almost complete decriminalisation. Brothels are legal in NSW.
In the past, NSW criminalised sex work under the Vagrancy Act. This means that a woman could be arrested as a “common prostitute” for engaging in street work (or street prostitution, where a sex worker solicits customers from public places, mostly on a public street).
During the 1970s, the public moved to decriminalise prostitution and decriminalise sex work. Hence, in 1979, the Prostitution Act made sex work legal. In 1983, this Act was amended due to calls for regulation of sexual activities and the sex industry.
Several variations were made to the law, and regulation of sex work in the following decades. However, some activities remain illegal; some criminal offences relating to sex work still exist in the Summary Offences Act 1988 and in the Crimes Act 1900.
Hence, there is not really full decriminalisation of sexual activity between women or the sex work industry. Laws suppress prostitution, but such practices are not fully illegal.
What Is Legal Under Sex Work?
Sex work, running a sex industry business and being a sex worker are all legal in NSW, but only if they are done according to NSW laws and regulations.
The legal age for a sex worker
The legal age for a sex worker is 18. Anyone over 18 may provide sexual services to a person over the age of consent in exchange for money, goods or favours. No person may employ someone under 18 years of age as a sex worker as it would amount to child prostitution. The clients of underage sex workers can also face charges. The underage sex worker cannot be charged as they are not committing an offence by working; only the person who employs them can be charged.
The legal age for a client
Clients must be over 16, but someone under 18 cannot enter a brothel or a sex services premises. Hence, sex workers should only accept clients who are 18 years of age or older.
In addition, a “brothel” is defined as premises that:
- are used for sex work, or
- have been used for prostitution and are likely to be used for it again, or
- have been advertised or represented as being used for prostitution, and are likely to be used for it.
Brothels are regulated by local councils, just like any other businesses. Street-sex work (soliciting customers from a public place) is lawful as long as it is not near or within view of a dwelling, school, church or hospital. A “dwelling” is any home or residence that is not attached to a shop or commercial premises.
What Are Illegal Sexual Services or Acts?
While sex work may be legal in many societies, the Summary Offences Act 1988 still contains a number of offences relating to male prostitution or to sex work, which include the following:
- An adult living on the earnings of the sex work of another person. This offence carries a maximum penalty of 12 months’ imprisonment (Section 15).
- Causing or inducing another person to do prostitution (Section 15A).
- Advertising prostitutes or premises used for prostitution (Section 18).
- Allowing premises for massage, sauna baths, steam baths, physical exercise or as a photography studio for sex work (Section 16).
- Soliciting or taking part in an act of prostitution within view of a school hospital, church or dwelling (Section 20).
- Permitting a minor to enter a brothel (Section 21D).
Sex Workers and Child Prostitution
The law regards a child as a person below 18 years of age. Generally, it is a serious crime to force a child (or young people or young women) to have sexual intercourse, participate in sex work, benefit from child prostitution or sexual intercourse, and/or allow a premises to be for child prostitution or sexual intercourse.
The Crimes Act 1900 contains a number of offences relating to child prostitution. These offences include the following:
- Inducing a child to engage in sex work or participating as a client in an act of child prostitution (Section 91D). This offence carries a maximum penalty of 10 years’ imprisonment, or if the child is under 14 years of age, for 14 years.
- Receiving money or a material benefit knowing it was derived from child prostitution (Section 91E). This offence carries a maximum penalty of 10 years’ imprisonment, or if the child is aged under 14 years of age, for 14 years.
- Exercising lawful control over premises where a child participates in sex work (Section 91F). This includes being the owner, lessee, licensee, or occupier of the premises. A person is only guilty of this offence if they knew about the act of child prostitution.
Brothel Closure Orders
In 2007, the government passed the Brothels Legislation Amendment Act. It is the law that provides guidelines for local councils in overseeing licensed brothel operations or a sex services business. This Act gives local councils in NSW the power to issue a Brothel Closure Order in circumstances of unlicensed brothels or where there has been a complaint about the operation of licensed brothels. Councils can only use a Brothel Closure Order to shut down premises where there is more than one sex worker or prostituted persons.
Local councils may issue a Brothel Closure Order if someone who works or uses the facilities makes one or more complaints about a brothel. To oppose a Brothel Closure Order, one must lodge an appeal at court after making the order. A brothel keeper who continues to operate the brothel and fails to comply with the Brothel Closure Order faces a criminal offence.
Seeking Legal Advice
While sex work may be legal in NSW, one must take note of precautions, especially because there are still offences relating to illegal activities due to sex work that are punishable by law. If you are a victim of illegal prostitution, sex work, or sex tourism, or even closely-related offences such as human trafficking, sex trade, sexual exploitation, or sexual violence, it is highly advisable to seek legal advice.
JB Solicitors has a leading team of experienced lawyers that can help with your situation. We can offer legal support services, representation and legal advice and ensure that we address all your legal concerns. Do you have any more queries? Contact us today.
