Is Prostitution Legal in Australia?

Prostitution and the sex work industry have been contested amongst lawmakers and the general public since their inception, resulting in ambiguity and contradiction over the past 40 years. Australia has one of the more liberal attitudes towards sex work internationally, but this does not mean that prostitution laws are not contentious.

Law-makers have had to strike a balance between upholding democratic freedoms to engage in sexual conduct, whilst also considering concerns from residents and citizens over the troublesome aspects of prostitution, which historically has included the spread of contagious diseases and concern for public health, as well as disorderly houses and public nuisance. As such, laws were introduced to not only keep the public safe, but keep sex workers safe as well.

However, the laws with regard to prostitution in Australia vary widely from state to state. People are unaware of what is legal in their state or territory due to the constantly shifting laws and jurisdictions and the taboo nature of the subject matter, making it difficult to navigate the industry for prostitution for law enforcers, sex workers and the general public.

What Are The Prostitution Laws In Australia?

Prostitution is legal throughout Australia, however the laws in Australia differ from state to state, sometimes marginally, and sometimes drastically. For example, while forms of prostitution are legal in states like South Australia, Western Australia and Tasmania, brothels and street prostitution are not allowed in these states. On the other hand, NSW allows brothels and street prostitution, as long as they are not near, or within view of, a dwelling, school, church or hospital. Also, to be eligible to register as a sex worker legally, you must be 18 years of age or older and have no prior criminal record.

Besides age of consent, the only nationally-uniform set of laws regarding prostitution and sex work is that all forms of child prostitution, sex trafficking and sex slavery are illegal under Federal law, regardless of state.

So, Where in Australia is Prostitution Illegal?

New South Wales (NSW)

New South Wales is one of the more liberal states in Australia regarding sex work.  It has been legal since 1995 with brothels coming under local council planning regulations. Brothels can be defined as any sex service premises, and can include a full service parlour, a one-worker premises (working from home), or massage parlours, which do not offer full sex services. Street-based sex work is also allowed on commercial streets, but prohibited in residential zones.

There are also rules regarding the act of solicitation, which refers to sex workers actively approaching potential customers or clients for payment for services outside of a designated brothel. Solicitation is considered illegal if it is done within view of a church, school, hospital, or residential dwelling, or within a business which is claiming to provide a non-sexual massage service.

Australian Capital Territory (ACT)

Sex workers, escort agencies and brothels have been legal in the ACT since 1992, when The Sex Work Act 1992 was introduced which updated and improved upon outdated rights and terminologies for sex workers. While sex workers in the ACT are allowed to work within a brothel or parlour, all sex workers who do so are required by law to register with the Office of Regulatory Services (ORS), which is now under the umbrella of Access Canberra. Sex workers have the option of operating privately as a “sole operator escort”, but must work alone.

Victoria (VIC)

Unlike NSW, Victoria has somewhat stricter laws governing sex work. Sex work is still legal in Victoria under the Sex Work Act 1994, and brothels have also been legalised and are heavily regulated through Consumer Affairs Victoria. Regulation includes strict registration, licensing, supply of materials (condoms, lubricant etc), and mandatory STI tests every three months for brothel-based sex workers.

Sex workers working within a brothel do not have to register with governing bodies individually as they are covered by the brothels registration. Small owner-operated brothels (up to one sex worker in this establishment, apart from operator) are exempt from registration, however they do require a permit to operate.

However, where the law differs drastically is in terms of street sex work, which is illegal and strictly enforced. Any sex worker found to be soliciting or working from the street can be charged with a criminal offence. There is currently a push from sex workers to change laws to protect sex workers and promote their safety, rather than punish them, which some believe the strict regulation does. If you or someone you know have been a victim of sexual assault, you should seek sexual assault advice from an experienced solicitor.

Queensland (QLD)

Queensland brothels, prostitution services and operators are legal under The Prostitution Act 1999. Brothels can be licensed by Queensland’s Prostitution Licensing Authority, however, Part 6, Division 1 of the act stipulates that unlawful prostitution includes public solicitation, nuisances connected with prostitution, duress, not using prophylactics, unlicensed brothels, massage parlour prostitution and street prostitution. As with the other east coast states, brothels are legal and can be established like any other business, however they must receive a licence by the appropriate authority and adhere to regulation by the governing body.

Northern Territory (NT)

The Northern Territory has recently passed amendments to their sex work laws which allow operators of sex work establishments to operate without obtaining a license. Instead, sex service businesses with three or more sex workers simply have to obtain a suitability certificate (which considers criminal history and compliance with health and safety procedures) from the Commissioner of Consumer affairs.

In the Northern Territory, an escort agency business and any escorts working within escort agencies are required to register at the Territory Licensing Committee and police with the exception of independent sex workers. Street prostitution is still illegal in the NT, and the word “brothel” is no longer used in legislation. These establishments are now referred to as sex service businesses, and they are legal provided all certificates and licenses are legally obtained and updated.

South Australia (SA)

South Australia has some of the strictest sex work laws in the country, with street prostitution, solicitation, receiving money for any form of sexual services, and licensed brothels being outlawed since the Criminal Law Consolidation Act of 1935 and the Summary Offences act of 1953. Despite a bill being introduced and passed by the Upper House in 2019, which would effectively decriminalise sex work in South Australia, it is still being debated in the lower house which leaves the restrictive criminal laws in place.

Western Australia (WA)

The Prostitution Act 2000 formally legalised prostitution, however it has paradoxically criminalised many associated acts and behaviour which make legally performing sex work possible such as sex service establishments and solicitation etc. For example, brothels, solicitation and street or public sex work are all illegal, as is pimping, which is the illicit management of prostitutes for profit.

The criminalisation of sex works in WA has been a topic of controversy, as it has been found that Perth brothels and street sex workers (who operate illegally), have the lowest health and safety levels, according to Perth Now.

How Are Sex Workers Regulated In Australia?

It is clear by now that sex workers and the sex work industry are regulated differently depending on the state and the laws. In Australia, there are three regulatory approaches to sex work depending on the state and territory you may live in, which include criminalisation, legalisation and decriminalisation.

Criminalisation

Criminalisation refers to registration, laws and frameworks that make sex work, or activities associated with sex work, a crime.

In NSW, sex work is completely decriminalised, provided that all regulations, licensing and health and safety standards are maintained. In Victoria, there is a two-tiered system. There is a “legal” sector, with licensed brothels and registered workers and a separate part of the industry which is unlicensed and criminalised (street sex workers and solicitation). In South Australia, Western Australia and Tasmania sex work is partially or fully criminalised, however there are by-laws and standards that make lawful sex work difficult. In Tasmania, private sex work is legal but street-based work and brothels are not.

Legalisation

Legalisation is a framework of laws that aim to impose statewide regulation and control the sex work of sex workers.

The legality of sex work has been a point of contention for centuries, but more specifically to Australia, the last several decades have been particularly interesting in regards to specific legislation between states, and the arguments for and against legalisation of sex work and sex workers.

In some Australian states, there is legalisation to assist sex workers under licensing laws. In Victoria, the Australian Capital Territory and Queensland sex work is only legal if it takes place within licensed venues and registration frameworks under licensing schemes, rather than sole sex workers. It is vital that sex workers and their clients understand the different legislation, both on a federal level, and on an inter-state level, as the law changes quite dramatically depending on where in Australia you are.

Decriminalisation

Decriminalisation is an act that removes all criminal laws that prohibit sex work, along with all associated activities.

In New South Wales, sex work was decriminalised in 1995. The Northern Territory worked to decriminalise sex work in 2019 and were successful, while South Australia is still debating the decriminalisation of sex work in the Lower House of Parliament.

Decriminalisation is a polarising and divisive topic, as some people believe that by legalising sex work, the government is condoning that type of work, while on the other hand, proponents for decriminalisation say that sex work will persist whether or not it is a crime, and that decriminalising it will take away the elements of abuse, danger and stigma that are rife in the industry.

What Defines Sex Work And Prostitution?

Prostitution specifically involves the practice of engaging in sexual activity with another individual for payment. It often carries a strong negative connotation, and as such has largely been replaced by the term “sex work”, which carries less stigma.

Sex work is broadly used to describe sexual services involving consenting adults who have not been illegally obtained, coerced, groomed or trafficked.

Sex work includes:

• Exotic dancing – pole dancing, stripping, go-go dancing, burlesque, lap dancing, peep show performers
• Modelling – Webcam, pornographic film acting
• Phone operators
• Erotic massage
• Grinding
• Prostitution – brothel work, massage parlour-related prostitution, bar or casino prostitution
• Escort services
• Sexual surrogates

The Case For Legalising Sex Work In Australia

There are many arguments for and against legalising sex work in Australia. Some fear that legalising sex work will create toxic environments while others find the ability to freely express their sexual desires, whims and wants empowering. One of the most important considerations is that by criminalising sex work, it can create a more dangerous environment for sex workers to operate within, as clients, managers and others can coerce, threaten or blackmail them, and they may fear to reach out to authorities for fear of being punished, either through fines or arrests.

Regardless of opposing ideologies or stances, it is important to understand the laws and legislation regarding prostitution and sex work in your state or territory and to understand the workplace rights and protections that may apply to you. Rather than criminalising an individual’s chosen occupation, it may be a more optimal option to make such work safer for those involved.

If you’re involved in a criminal-related sex work case, contact us today. LY Lawyers are the most trusted criminal lawyers in Sydney and can help prepare you for the best possible legal defence for your case.