Clarity Law

Specialist Criminal Law Firm Queensland
Thursday, 10 August 2023 17:04

Offences related to sex work in Queensland

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In Queensland, the legislation legalising sex work is divided between the Criminal Code 1899 and the Prostitution Act 1999 (and their subordinate regulations). In practice, sex work is divided into work that occurs in licenced brothels and work done by independent workers. Both types of operation are heavily regulated, and the nature of the work sex workers are allowed to engage in is tightly controlled. Similarly restrictive rules apply to advertising of sex work.

The legislative regime creates a slough of offences that could apply to a wide range of people within the orbit of sex work. Potential criminal charges may be brought against either sex workers, or their clients, or to anyone running a prohibited brothel, or to anyone allowing a prohibited brothel to operate on their premises. This articles briefly describes the crimes that apply to each of these categories of people.

However, it is also important to note that Queensland is heading in the direction of fully decriminalising sex work. In March 2023, the Queensland Law Reform Commission published its two-volume report into Queensland’s sex-work legislation. That same report made 47 recommendations for change, effectively recommending the decriminalisation of sex work. Legislation giving effect to these recommendations are due to be introduced to the Queensland Parliament by the end of 2023.

*A note on terminology: many workers in the sex industry consider the words “prostitute” and “prostitution” derogatory, outdated, dehumanising, and, therefore, offensive. In this article, every effort has been made to use the terms “sex worker” and “sex work” unless in specific reference to terminology used in legislation. Regrettably, Queensland’s legislation still uses these outdated words to refer to sex workers and their work. Where use of these words is unavoidable, it is indicated that they are being used in their legal context.

 

The Legislative Regime

The Prostitution Act 1999 creates a licencing system for brothels. It also creates the Prostitution Licencing Authority, who oversees the granting of licences and revocation of licences in certain circumstances. Brothel licences are, in broad terms, similar to alcohol licences granted to entertainment venues. The operation of strip clubs is not governed by the Prostitution Act 1999, as these licences are a subset of liquor licences and are issued by the Office of Liquor and Gaming.

Sole-operator sex workers are not required to hold licences to conduct sex work. However, sole operators must not work in company with another (or other) sex workers. Two or more independent sex workers working together is defined as “unlawful prostitution” in s 229C of the Criminal Code 1899. Notwithstanding this restriction, sole-operator sex workers are permitted to engage either a security guard, or a crowd controller, or a driver but only if those roles are filled by someone who holds a current security licence.

Sole-operator sex workers are also permitted to engage someone that the sex worker can contact about their location and the work they are doing. The purpose of the sex worker contacting this person must be so that the worker can ensure their own safety. The restriction on engaging this person that the sex worker contacts for these purposes is that the person cannot be another sex worker.

Sex workers cannot work out of a massage parlour, nor can they advertise massages as part of their services.

 

Offences that Apply to Sex Workers and to Other People Generally

Most of the offences that apply to sex workers also apply to their clients or to other people connected to sex work generally. For example, some offences apply to the owners of licenced brothels. Other offences apply to people who own premises where illegal sex work may occur. Examples of these offences include:

  • carrying on a business of providing “unlawful prostitution.” The term “carrying on a business” is defined as providing finance and either being part of the management or having control of the business.
  • engaging in “unlawful prostitution” or obtaining “unlawful prostitution” through “a business”.
  • anyone from being “found in or leaving after having been in a place” where two or more sex workers are working. The exception to this law is if the place is a licenced brothel. However, the licenced brothel exception does not apply if one or more of the sex workers is either a child or has an impairment of the mind and the person found or leaving the place knows that this is the case.
  • having an “interest” in a place and allow that place to be used by two or more sex workers. Having an “interest” in a place includes owning it, renting it, leasing it, etc or controlling an “entity” (eg, a corporation) that has such an interest in the place. Again, the exception to this law is if the place is being used by a licenced brothel (unless the brothel contains one or more sex workers who is either a child or has an impairment of the mind).
  • “publicly” soliciting for sex work. Public solicitation may occur either in public, or within the sight or hearing of anyone within a public place. There are two exceptions to this law. The first is if the solicitation occurs inside a licenced brothel and the solicitation cannot be seen publicly. The second exception applies to police officers conducting a “controlled activity” (ie, an “undercover” or “sting” operation).
  • causing a “nuisance” to another person because of sex work.
  • compelling someone to engage in sex work using threats, intimidation, harassment, deception, etc.
  • violating the terms of a brothel licence (Part 6 of the Prostitution Act 1999 creates about a dozen separate offences relating to violating the terms of brothel licences).
  • providing sexual intercourse or oral sex without a prophylactic (eg, condoms, dental dams, etc).

Furthermore, Division 4 of Part 6 of the Prostitution Act 1999 creates offences relating to advertising for sex work. The legislation dictates what is, and what is not, acceptable advertising for sex work. In short, advertising must be in the approved form and must only occur in approved locations. These advertising rules apply to both brothels and to sole-operator sex workers. Advertisements offering “social escort services” (ie, non-sexual companionship on a commercial basis) are also strictly regulated and must explicitly state that sexual services are not offered.

 

Offences that Apply to People Other than Sex Workers

Other than the examples listed above, there are some offences that are specifically directed at clients of sex workers, or other people connected with sex work. Examples of these offences include:

  • Obtaining sex work from someone who is not an adult (ie, under 18 years old). The client does not need to “know” that the person is underage. If it is proven that it was “reasonable” for the client to know they were engaging a child, then the client will be convicted of this offence.
  • Procuring a person to engage in sex work. This offence is specifically described as compelling the person to come to Queensland, or to leave Queensland, in order to engage in sex work. This is what distinguishes this offence from the other offence of using threats, etc, to compel a person to engage in sex work.
  • Knowingly participating, directly or indirectly, in the provision of “prostitution” by another person. All the circumstances described above (ie, licenced brothels, security guards, crowd controllers, drivers, safety contact) which allow other people to be involved in a sex worker’s business are specifically listed as exceptions to this otherwise blanket prohibition.

Therefore, the legislative regime is not only directed at restricting the activities of sex workers, but it is also directed at anyone who wishes to get involved in illegal sex work, either as a client, or as a manager of illegal sex workers, or as someone who allows illegal sex work to operate out of premises that they control.

To provide an example of how thorough this regime is, suppose the police execute a search warrant on an apartment where they suspect two or more sex workers are operating. The police could potentially charge the sex workers themselves, any clients found in the apartment, any clients leaving the apartment, the person who is renting the apartment (if someone other than the sex workers are on the lease), and the person who owns the apartment (if someone other than the sex workers own the property). Of course, whether criminal charges may extend that far depends on the circumstances of each case (and the evidence police find). For example, in order to charge the renter or owner of the apartment, the police will need evidence that the renter and / or owner had “knowledge” that illegal sex work was occurring at that place.

 

Maximum Penalties

Many of the offences listed above have maximum penalties which increase depending on how often the offence has been committed. Many of them follow a pattern of 3 years’ imprisonment for a first offence, 5 years’ imprisonment for a second offence, and 7 years' imprisonment for a third or every subsequent offence. The most severe penalties are reserved for offences that occur in circumstances where the sex worker is a child or has “an impairment of the mind”. In these circumstances, the maximum penalty increases to 14 years’ imprisonment.

Many of these offences are also subject to the serious and organised crime penalties described in Part 9D of the Penalties and Sentences Act 1992. In short, a person charged with an offence who is also a member of a criminal organisation will face the mandatory imprisonment sentencing structure provided for under that Act.

Many of the “lesser” offences (eg, causing a nuisance, or violating the restrictions on advertising, etc) attract fines as their maximum penalty. Nevertheless, the maximum value of the fines increase depending on how often the offence has been committed for many of these offences.

 

Possible Defences

As with almost all offences in Queensland, it is possible to raise defences to charges against the sex work legislation. The nature of these defences will vary, depending on the charge.

For example, the offences that require the person charged to have “knowledge” that they were committing the offence may be defended if the person can prove that they had no such knowledge. Even then, the defence will vary, depending on the specific charge. Some offences that require “knowledge” of an illegal act require proof of actual knowledge. Other offences only require that the person “ought reasonably to have known” about a certain state of affairs. In that case, it is only necessary to prove what a “reasonable person” would be expected to know if they were in the position of the person charged.

 

Conclusion

The offences that apply to sex work are extensive and far-reaching. They apply not only to sex workers themselves, but (potentially) to anyone associated with sex work in Queensland. While this legislative regime is due to undergo significant overhaul in the years ahead, it is important to understand the parameters of sex work as it currently exists.

Because of the enormous complexity of this legislation, and the serious penalties that attach to the offences that it creates, it is also important to get expert legal advice.

Read 260 times Last modified on Friday, 11 August 2023 17:06
Russell Tannock

Russell Tannock is a senior criminal defence lawyer at Clarity Law.  Russell appears in every court in South East Queensland respresenting clients charged with criminal offences.