Where have these proposals come from?

As required by section 141(14) of the Prostitution Act 1999, in 2003 the CMC began an evaluation of the Queensland sex industry laws. However the evaluation, like the Act itself, was focussed on stereotypically prejudiced views of the sex industry. For example individuals’ "entry" into the sex industry was pathologised and portrayed as negative. Scarlet Alliance and other sex worker groups have expressed concern at the moralistic, and theoretically biased approach taken by the original report, Regulating Prostitution, December 2004. Only 65 sex workers returned the survey.

The evaluation made 29 Recommendations. Judy Spence claims that the tabled legislation, the Prostitution Amendment Bill 2006 reflects the recommendations. This is not true. The Crime and Misconduct Commission recommendations are not fairly represented in the legislation. There are key changes that impact on sex workers that do not stem from the recommendations. For example:

• Individual private sex worker advertising will now be controlled more comprehensively by the PLA, including fines of up to $5250 for non-compliance. The PLA will be granted a power to determine matters around advertising that goes beyond just dictating the context and size of an ad. Scarlet Alliance fears that this power over private sex workers will become pseudo registration if the PLA decides to force individual private sex workers to have a registration number in order to legally advertise beyond a simple two line ad.
• The representation on the Prostitution Licensing Authority Board is being amended, however there is still no recognition for sex workers on the PLA board.

None of these changes were recommendations from the CMC.
Link to Scarlet Alliance Media Release on the issue.

• Health professionals will no longer have to comply with usual standards of confidentiality if they doubt a sex workers' mental health. The health professional will be free from civil liability or charges of defamation if they report such a sex worker to the police, even without a formal assessment of the sex worker's mental health. This will severely compromise the accountability and transparency of health professionals, and the level of care that sex workers receive.
• The police are also being given an increased role in regulating the sexual behaviour of individual sex workers through the criminalisation of offering sex (including oral sex) without a condom. This is a form of policing to which no other group in society is subjected.

NUMBERS OF SEX WORKERS IN BROTHELS (Clause 15, s78) (recommendation 7 from the 2004 CMC evaluation)

Currently brothels have a maximum of 5 workers on shift at a time. It is proposed to raise this number to 8. However the maximum number of rooms will remain at 5. Scarlet Alliance was aware that the Queensland brothel owners group (QABA) lobbied for this change, and we have recently been informed that both the PLA and SQWISI supported the increase.

CRIMINALISING WORKERS WHO OFFER ANY SERVICE WITHOUT A CONDOM (Clause 16, s77A) (recommendation 6 from the 2004 CMC evaluation)

The new laws propose to criminalise sex workers who offer any sexual service without a condom, including those who are entrapped over the phone by police officers posing as clients. The Prostitution Act 1999 as amended in 2003 (s 77A), criminalised sex workers who carried out sexual services without a condom. At that time SQWISI obtained legal advice about the extent of sexual activity the law covered. The following activities are included:

• Vaginal Sex (Condoms should be used)
• Anal Sex (Condoms should be used)
• Oral sex on men (Condoms should be used)
• Cunnilingus on Women (Dams should be used)
• Penetration of mouth, vagina or anus with fingers or toys (Condoms, gloves or fingercots should be used)

SEX WORKERS NO LONGER PROTECTED BY ETHICAL AND PROFESSIONAL STANDARDS IN HEALTH CARE, DEFAMATION OR CONFIDENTIALITY (Clause 31, new S134A)

Health care workers will be able to breach confidentiality and report an individual sex worker to the police for intellectual impairment and will be free to do so without a proper assessment. Scarlet Alliance are concerned that by removing the need for health care professionals to ensure confidentiality, mistrust will develop between sex workers and health care professionals. Health care professionals will be free to act without consequence. The definition of ‘intellectual impairment; includes “intellectual, psychiatric, cognitive or neurological impairment.” If there is to be an assessment for intellectual impairment, it must be conducted by independent practitioners who are experienced in the field of mental health, not by nurses or health educators in sex worker organisations. Sex worker health services are already under-resourced. To add this responsibility to the system is unworkable. If health practitioners are to be protected from civil liability it should be done through the creation of firm comprehensive guidelines on professional ethics, not by having their responsibility for confidentiality removed. (see below: Full text of the proposed new laws relating to health services.)

SEX INDUSTRY ADVERTISING PENALTIES TO BE INCREASED (Clause 19, S93) and THE PLA TO ISSUE GUIDELINES FOR ADVERTISING (Clause 33, S 139A) and PLA TO HAVE POWER TO MAKE REGULATIONS FOR ADVERTISING FOR INDIVIDUAL SEX WORKERS, INCLUDING NEEDING APPROVAL FROM THE PLA (Clause 34, S140(2))

These proposals were NOT recommendations from the 2004 CMC evaluation, but rather have come out of a more recent report in December 2005 (Link here to full report) on which public comment has only recently been gathered. The final CMC report has yet to be released and is due later in the year. The December 2005 report from the CMC made recommendations for individual registration of private sex workers who wanted to place advertisements larger than the smallest 2-line ads. Scarlet Alliance and SSPAN have raised concerns about this proposal and have argued very strongly against the registration of individual private sex workers. So it is very concerning and improper that Judy Spence is already proposing changes which indicate a move towards individual registration in relation to private sex workers. The outcomes of the consultations relating to the registration proposal are not due to be released until later in the year, yet it appears that Judy Spence is getting ahead of the formal consultation process by putting these changes in early. The penalty for breaching advertising regulations has been almost doubled from 40 penalty units to 70 penalty units (or $5,250) for private sex workers AND brothels. The PLA already has the power to issue advertising guidelines but this legislation extends the regulation making power of the premier and the PLA. They will be given the power to make advertising regulations at their discretion in regards to the advertising of individual sex workers, and this may include matters other than content and size. There may be a requirement to obtain approval from the PLA on "matters not in the advertisement." These changes together will allow private sex workers to be subject to individual registration, with fines of $5,250 for EVERY advertisement they lodge if they are unregistered, and no further legislative changes would be needed.

CHANGING THE MAKEUP OF THE PLA BOARD – (s102)

This proposal also has no basis in the 2004 evaluation. Scarlet Alliance are concerned that the make up of the board is being amended without consultation, and that there has been no opportunity to discuss the merits of having a sex worker on the board.

OTHER CONCERNS – USE OF THE TERM ‘Sole Operator’

The Police Minister in her second reading speech for the amendments used the term "Sole Operator" when referring to private sex workers. This is incorrect use of terminology, and does not reflect the intention of the law.

If you are concerned about the proposed changes to the laws and want to get in contact with Scarlet Alliance, you can email info@scarletalliance.org.au or call 02 9326 9455

Updated with asstance from SSPAN - 10 April 2006

FULL TEXT OF PROPOSED NEW LAWS RELATING TO HEALTH SERVICES:

134A Protection of health professionals from liability

• (1) This section applies if a health professional reasonably believes that a prostitute at a licensed brothel is a person with an intellectual impairment.
• (2) The health professional may give a police officer information about the prostitute and the prostitute’s disability.
• (3) The health professional is not liable, civilly, criminally or under an administrative process, for giving the information to the police officer honestly and on reasonable grounds.
• (4) Also, merely because the health professional gives the information, the health professional can not be held to have—
• (a) breached any code of professional etiquette or ethics; or
• (b) departed from accepted standards of professional conduct.
• (5) Without limiting subsections (3) and (4)—
• (a) in a proceeding for defamation, the health professional has a defence of absolute privilege for publishing the information; and
• (b) if the health professional would otherwise be required to maintain confidentiality about the information under an Act, oath or rule of law or practice, the health professional—
• (i) does not contravene the Act, oath or rule of law or practice by giving the information; and
• (ii) is not liable to disciplinary action for giving information.
• (6) In this section— health professional means—
• (a) a doctor; or
• (b) a person registered under the Nursing Act 1992; or
• (c) a person registered under the Psychologists Registration Act 2001; or
• (d) another person prescribed under a regulation for this section.
• A person with an intellectual impairment means an intellectually impaired person under the Criminal Code, section 229F.’ (see below)

229F Meaning of intellectually impaired person

A person is an intellectually impaired person if the person has a disability—

• (a) that is attributable to an intellectual, psychiatric, cognitive or neurological impairment or a combination of these; and
• (b) that results in—
• (i) a substantial reduction of the person’s capacity for communication, social interaction or learning; and
• (ii) the person needing support.