Sex work legislation stands in the way of Australia’s commitments: decriminalisation for sex workers health, safety and rights

HIV Australia | Vol. 12 No. 2 | July 2014

By Janelle Fawkes

Australia is a signatory to the 2011 United Nations Political Declaration (UNPD) on HIV and AIDS. By signing the declaration, Australia has committed to protecting and promoting human rights and the elimination of stigma and discrimination for people living with HIV and prioritised communities (including sex workers) as a ‘critical element in combating the global HIV epidemic’¹ and achieving the UNPD targets.

Australia’s commitment

The declaration also commits Australia to action to achieve this, including ‘intensify[ing] national efforts to create enabling legal, social and policy frameworks’.²

What is an enabling legal, social and policy framework for sex workers?

We know what works

Within Australia most laws regulating sex work are state or territory based. Each jurisdiction has taken a different approach, ranging from criminalisation to licensing models to decriminalisation in NSW.

As a result we are well placed to understand the impact of different legal frameworks on sex work, sex workers and HIV. The complex matrix of laws combine with varying policing practices and a variety of other impacting laws including public health and anti-discrimination legislation.

Decriminalisation is the legal framework that sex workers and sex worker civil society or community-based organisations recommend as the best practice model of sex work legislation.

This recommendation is the result of many years of analysis, review of the available evidence – and perhaps most importantly – the lived experience of sex workers working within different legal frameworks.

Decriminalisation is also recognised as promoting and achieving high levels of compliance and being a low cost model to maintain. The additional benefit is that it does not divert policing resources away from crime prevention.

New Zealand and New South Wales in Australia are the only two locations globally where versions of decriminalisation have been introduced.

New South Wales introduced decriminalisation in 1995 and New Zealand in 2003. Both jurisdictions have provided considerable evidence to inform our understandings of how legal frameworks can provide an enabling environment.

Decriminalisation of sex work in NSW has demonstrated it is the most effective legal framework for supporting HIV prevention for sex workers and achieving public health objectives.³ ⁴

A comparative study by Harcourt, et al.⁵ looked at HIV and STI prevention with sex workers across three jurisdictions, each with a different model of regulation.

The study demonstrated that sex workers within a decriminalised setting maintained an extremely high level of condom use, extremely low rates of HIV and STIs, and had access to well resourced peer education.

There is also evidence demonstrating decriminalisation provides improved occupational, health and safety for sex workers⁶ and contributes to improved human rights.⁷

The Sixth National HIV Strategy 2010–2013 refers to research that suggests within a ‘decriminalised and deregulated legislative framework sex workers have increased control over their work and are able to achieve similar or better health outcomes without the expense and invasiveness of mandatory testing.’⁸

Whilst laws alone will not eliminate stigma and discrimination, decriminalisation has shown strong signs of creating an environment where sex workers are able to address discriminatory practices.

Where in place, anti-discrimination legislation that specifically includes sex workers sends a strong message to the community that discrimination against sex workers is unacceptable, promotes social inclusion, and supports sex workers’ own campaigns around access to social and legal justice. The theory that decriminalisation results in the expansion of the sex industry is refuted by evidence based research.

In New Zealand data from prior to decriminalisation, compared to data measured at the five-year review stage, shows the size of the sex industry in New Zealand has not increased as a result of decriminalisation.⁹ This was also a finding of the Australian study in NSW.¹⁰

It is widely recognised that decriminalisation is the best legal framework to support HIV responses

The 2010 UNAIDS Report on the Global AIDS Epidemic states that ‘countries should now take action to decriminalize sex workers’ and the 2012 Global Commission on HIV and the Law recommends decriminalisation of sex work.

The United Nations Population Fund, United Nations Development Fund and UNAIDS all support the decriminalisation of sex work and note that legal empowerment of sex worker communities underpins effective HIV responses.¹¹

United Nations Secretary General Ban Ki- Moon called for change in countries where discrimination against sex workers remains legal.¹²

We know what doesn’t work

Evidence from Victoria and Queensland demonstrates that licensing models have consistently failed in Australia, and that licensing is ineffective, expensive and unworkable.

A licensing model inherently creates a two-tiered industry; the minority who can comply with the excessive regulations and the majority that cannot and are therefore considered ‘illegal’.¹³

The illegal sector remains under the regulation of police even though Royal Commissions have demonstrated high levels of corruption when police are the regulators of the sex industry.¹⁴

The Prostitution Licensing Board of Queensland recognises in its annual reports that in more than ten years only 26 brothels have been licensed, at a cost of several million dollars to taxpayers.¹⁵¹⁶

The concept sold to the community that brothel licensing fees would cover the operating costs of the regulatory bodies has never been achieved.

While legal sex industry businesses are few and far between in Queensland, individual sex workers are prevented from working in pairs, significantly reducing the ability to work independently.

Similarly, in Victoria independent sex workers face significant barriers to operate from their own homes or even separate in-call spaces.

Across Australia street based sex work continues, yet this sector of our community (approximately 5% of all sex work) is heavily criminalised and targeted by police.

Condoms continue to be used as evidence in South Australia and Western Australia, and recent statistics from the Victorian Sentencing Advisory Council show in 2010–12 the highest number of criminal charges against women in Victoria were for street based sex work related charges.¹⁷

Unfortunately, at a time when significant sex workers campaigns are calling for decriminalisation for our health and safety, we are experiencing a backlash by a school of feminism that conceptualises all sex work as violence against women (also ignoring the gender diversity of sex workers).

This wave of sex work abolitionists have consistently ignored the voices of sex workers and progressed a campaign for the Swedish laws (sometimes incorrectly referred to as the Nordic model).

Introduced into Sweden in 1999 and simplistically referred to as the criminalisation of the clients of sex workers, the model is in fact a complex set of laws that criminalise many aspects of a sex worker’s experience, including supporting partners and children, and the leasing of accommodation to sex workers. These laws significantly undermine the ability to work and are not supported by sex workers.¹⁸

Human Rights

Australia’s Sixth National HIV Strategy names the protection of human rights to be essential to the effective protection of public health.¹⁹

Sex workers universally advocate for the decriminalisation of sex work, identifying the criminalisation of sex work, sex workers, our workplaces or our clients as approaches that undermine sex workers’ human rights and ability to work safely.

Through the Global Network of Sex Work Projects (NSWP) sex workers have agreed to a ‘Sex Work, human rights and the law consensus statement’ consisting of eight rights.

They are the right to: associate and organise; be protected by the law; be free from violence; be free from discrimination; privacy, and freedom from arbitrary interference; health; to move and migrate; and to work and free choice of employment.²⁰

However, for sex workers in many parts of Australia and our region, there are many examples of laws that undermine these basic human rights and create significant barriers to us working safely.

Ironically they are too often misguided attempts to protect sex workers or the community, which fail dismally at both as well as undermining HIV prevention efforts.

This year the Global Fund, a major donor supporting country-level HIV responses, moves to the next phase of its 2012–16 strategy which includes major policy and funding approach changes to ensure human rights are positioned as critical to responding to HIV.

The changes aim to integrate human rights into countries’ HIV programs, increase investment in programs that address human rights and ensure the Global Fund does not support programs that undermine human rights.

As critical enablers to meet these aims, countries are required to both ‘conduct an analysis of the human rights and legal environment (including laws, law enforcement practices and access to justice by those affected by HIV)’ and consult with key affected populations, including sex workers, through meaningful input into proposals.

Well documented yet not progressed

The last decade could be described as a period of strong advocacy, but no progress in achieving enabling environments and human rights for sex workers in Australia.

This statement fails to represent the many sex workers who have dedicated their time, expertise, passion and commitment to contributing to law reviews, briefings, hearings and many other mechanisms that should have resulted in full decriminalisation being recognised and introduced throughout Australia.

However, sex worker advocates’ experience of these mechanisms is that they have not functioned transparently, and were not accountable to the people most likely to be directly impacted as the key stakeholders: sex workers.

In too many cases to cover here, sex workers have been silenced, ignored, excluded or dismissed from policy development. So while there is significant evidence, collected over a period of more than ten years, unfortunately evidence is not what is driving the direction of legal frameworks on these issues.

Moral, religious and sex work abolitionist voices seem to have drowned out Australia’s commitment to progress this area and the importance of progressing these issues in consultation with sex workers in line with Australia’s partnership approach seems to have completely faltered.

Looking forward

The ‘Stepping up the Pace’ 20th International AIDS Conference (AIDS 2014) profiles these issues for sex workers, and Australia’s actions against these commitments will be under the spotlight.

Australia’s Seventh National HIV Strategy is likely to be released in time for the event and provides an opportunity for a recommitment to action on the creating of enabling legal frameworks.

This will not happen without a paradigm shift that makes the integration of human rights and HIV into policy more than rhetoric.

The work of the Commonwealth Ministerial Advisory Committee on BBV and STIs (MACBBVS) Legal and Discrimination Working (LDW) Group has contributed to the start of this process in the development of a suite of seven papers including key issues and recommendations, yet there remains no mechanism through which to progress this critical work.²¹

In 2014 Australia stands at a threshold in relation to HIV and human rights. The sex worker community is clear on what equates to enabling legal, social and policy frameworks for sex workers – with strong research, clinical evidence and the lived experiences of sex workers showing decriminalisation is the legal framework that enables an effective HIV response for sex workers – what we call for now is the long awaited commitment from government.

Decriminalisation for sex workers health, safety and rights.

Janelle Fawkes is Chief Executive Officer, Scarlet Alliance, Australian Sex Workers Association.

References

1 United Nations. (2011). Resolution adopted by the General Assembly 65/277. Political Declaration on HIV and AIDS: Intensifying Our Efforts to Eliminate HIV and AIDS, s39, s77.

2 ibid.

3 Donovan, B., Harcourt, C., Egger, S., et al. (2012). The Sex Industry in New South Wales: a Report to the NSW Ministry of Health. Kirby Institute, University of New South Wales, Sydney.

4 Donovan, B., Harcourt, C., Egger, S., Fairley, C. (2010).‘Improving the Health of Sex Workers in NSW: Maintaining Success’, NSW Public Health Bulletin 21(3–4), 2010, 74–7.

5 Harcourt, C., O’Connor, J., Egger, S., et al. (2010). The Decriminalisation of Prostitution is Associated with Better Coverage of Health Promotion Programs for Sex Workers’, Australian and New Zealand Journal of Public Health, 34(5), 482–6.

6 New Zealand Government. (2008). Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003, Ministry of Justice, Wellington.

7 New Zealand Prostitutes’ Collective. (2010). Presentation at the Australasian HIV/AIDS Conference 2010, October, Sydney.

8 Australian Government Department of Health and Ageing (DoHA). (2010). Sixth National HIV Strategy 2010–2013. Commonwealth of Australia, Canberra, 6.4.

9 New Zealand Government, (2008), op. cit., 13.

10 Donovan, B., et al., (2010), op. cit., vi.

11 The United Nations Population Fund (UNFPA), the Joint United Nations Programme on AIDS (UNAIDS). (2011). Building Partnerships on HIV and Sex Work: Report and Recommendations from the first Asia and the Pacific Regional Consultation on HIV and Sex Work. UNFPA, UNAIDS, Geneva, 14.

12 UNAIDS. (2009). UNAIDS Guidance Note on HIV and Sex Work. UNAIDS, Geneva.

1313 Harcourt, C., et al.,(2010), op. cit.

14 New South Wales Government. (1997). Royal Commission into the NSW Police Service: Final Report – Volume 1: Corruption. The Government of the State of New South Wales.

15 Prostitution Licensing Authority Queensland. (2014). Licensed Brothels [online]. Retrieved from: www.pla.qld.gov.au

16 Prostitution Licensing Authority Queensland, Annual Reports 2000–2011, Statements of Financial Performance.

17 Sentencing Council of Victoria, SACStat database. Retrieved from: www.sentencingcouncil.vic.gov.au Reported in: Spooner, R., Butt, C. (2014, 4 January). Men dominate sex crime, Women smuggle more, latest Victorian Statistics Reveal. The Age. Retrieved from: www.theage.com.au

18 Dodillet, S.,Östergren, P. (2011). The Swedish Sex Purchase Act: Claimed Success and Documented Effects. Conference paper presented at the International Workshop: Decriminalizing Prostitution and Beyond: Practical Experiences and Challenges. The Hague, 3–4 March, 2011. Retrieved from: http://gup.ub.gu.se

19 DoHA, (2010), op. cit.

20 Global Network of Sex Work Projects (NSWP). (2013). Global Consensus Statement on Sex Work, Human Rights and the Law.NSWP, Edinburgh. Retrieved from: www.nswp.org

21 Legal and Discrimination Working Party of the Commonwealth Ministerial Advisory Committee on BBV and STI (MACBBVS). (2013). Legal issues in public health. A series of seven papers on the impacts of discrimination and criminalisation on public health approaches to blood borne viruses and sexually transmissible infections. Prepared for MACBBVS, Canberra, Australia. Retrieved from: www.hrc.act.gov.au/res/September