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TASMANIA
__________
SEX INDUSTRY OFFENCES BILL 2005
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
PART 2 OFFENCES IN RESPECT OF SEXUAL SERVICES
BUSINESSES
4. Persons not to be commercial operators of sexual services
businesses
5. Persons not to receive commercial sexual services
6. Prosecution witnesses not required to disclose sources of
information
7. Offences against sex workers
8. Soliciting and accosting
9. Participation of children
10. Extra-territorial application of offences
11. Children on premises
12. Sex workers and clients to adopt safe sex practices
PART 3 POWERS OF POLICE OFFICERS
13. Power to arrest without warrant
14. Hindering or obstructing police officers
[Bill 63]-VI
15. Entry by police officers
16. Premises not to be used for commercial sexual services
businesses
17. Revocation of orders to cease operating commercial sexual
services businesses
18. Power of police officers at or above rank of sergeant to require
financial information
PART 4 MISCELLANEOUS AND SUPPLEMENTAL
19. Protection from liability
20. Regulations
21. Administration of Act
PART 5 CRIMINAL CODE ACT 1924 AMENDED
22. Principal Act
23. Principal Act amended
PART 6 EVIDENCE (CHILDREN AND SPECIAL WITNESSES) ACT
2001 AMENDED
24. Principal Act
25. Section 3 amended (Interpretation)
PART 7 JUSTICES ACT 1959 AMENDED
26. Principal Act
27. Section 3 amended (Interpretation)
PART 8 POLICE OFFENCES ACT 1935 AMENDED
28. Principal Act
29. Section 8 amended (Begging, imposition, prostitution, &c.)
30. Section 10 amended (Disorderly houses)
31. Section 57 amended (Power of police officers to enter certain
places)
2
SEX INDUSTRY OFFENCES BILL 2005
(Brought in by Lin Thorp)
A BILL FOR
An Act to impose certain restrictions on the operation of
sexual services businesses in order to protect children and
sex workers from exploitation in the sex industry, to
safeguard public health, to amend the Criminal Code Act
1924, the Evidence (Children and Special Witnesses) Act
2001, the Justices Act 1959 and the Police Offences Act 1935
and for related purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Sex Industry
Offences Act 2005.
2. Commencement
This Act commences on a day to be proclaimed.
[Bill 63] 3
s. 3 No. Sex Industry Offences 2005
3. Interpretation
(1) In this Act, unless the contrary intention
appears
"child" means a person under the age of 18
years;
"commercial operator" means
(a) a person who is not a self-
employed sex worker and who,
whether alone or with another
person, operates, owns, manages
or is in day-to-day control of a
sexual services business; and
(b) if the person referred to in
paragraph (a) is a corporation or a
body corporate, a director, within
the meaning of the Corporations
Act, of that corporation or body
corporate;
"commercial sexual services business"
means a sexual services business
operated or managed by a commercial
operator;
"prophylactic" means a condom or other
device used to prevent the transmission
of a sexually transmissible infection;
"self-employed sex worker" means
(a) a sex worker who solely owns
and operates a sexual services
business; or
4
2005 Sex Industry Offences No. s. 3
(b) a sex worker who, together with
no more than one other sex
worker, neither of whom employs
or manages the other, owns and
operates a sexual services
business;
"sex worker" means a person who provides
sexual services in a sexual services
business;
"sexual intercourse" means sexual
intercourse as defined in section 1 of the
Criminal Code;
"sexual services" means
(a) an act of sexual intercourse; or
(b) any activity where there is any
form of direct physical contact
between 2 or more persons for
the purpose of the sexual
gratification of one or more of
those persons including, without
limitation, the masturbation of
one person by another;
"sexual services business" means a business
providing sexual services for fee or
reward;
"sexually transmissible infection" means a
disease specified as a sexually
transmissible infection in Table 1 of the
Guidelines for Notifiable Diseases,
Human Pathogenic Organisms and
Contaminants issued by the Director of
5
s. 3 No. Sex Industry Offences 2005
Public Health under section 184 of the
Public Health Act 1997.
(2) For the purpose of the definition of "commercial
operator" in subsection (1), a reference to a
commercial operator is a reference to
(a) a person who determines any one or
more of the following:
(i) when or where a sex worker will
work;
(ii) the conditions in which a sex
worker will work;
(iii) the amount of money, or
proportion of an amount of
money, that a sex worker will
receive as payment for sexual
services; or
(b) a person who employs, supervises or is in
day-to-day control of any person referred
to in paragraph (a).
6
2005 Sex Industry Offences No. s. 4
PART 2 OFFENCES IN RESPECT OF SEXUAL
SERVICES BUSINESSES
4. Persons not to be commercial operators of sexual
services businesses
A person must not be a commercial operator of a
sexual services business.
Penalty: Fine not exceeding 800 penalty units
or imprisonment for a term not
exceeding 8 years, or both.
5. Persons not to receive commercial sexual services
(1) In this section
"commercial sexual services" means sexual
services provided by a sex worker in a
commercial sexual services business.
(2) A person must not knowingly receive
commercial sexual services.
Penalty: Fine not exceeding 100 penalty units
or imprisonment for a term not
exceeding one year, or both.
(3) Proceedings may not be instituted against a
person for knowingly receiving commercial
sexual services contrary to subsection (2)
(a) if the person gives evidence in court, if
called to do so by the prosecution, that he
or she received those commercial sexual
services; or
7
s. 6 No. Sex Industry Offences 2005
(b) if the person agrees to give evidence in
court, that he or she received those
commercial sexual services, but is not
called to do so by the prosecution.
(4) For the purpose of any time limit imposed by
any Act on the taking of proceedings under
subsection (2), the period within which
proceedings may be instituted commences on the
day the alleged offender is called by the
prosecution to give evidence in court.
6. Prosecution witnesses not required to disclose
sources of information
A person who is giving evidence for the
prosecution in any proceedings for an offence
against this Act is not required to disclose
(a) that he or she has received any
information; or
(b) the nature of any information that he or
she has received; or
(c) the name of a person from whom the
witness has received any information.
7. Offences against sex workers
(1) A person must not
(a) intimidate, assault or threaten to assault a
sex worker; or
(b) supply or offer to supply a prohibited
plant, prohibited substance, narcotic
8
2005 Sex Industry Offences No. s. 7
substance or restricted substance, as
defined in the Poisons Act 1971, to a sex
worker; or
(c) supply or offer to supply a controlled
substance, as defined in the Misuse of
Drugs Act 2001, to a sex worker; or
(d) administer to a sex worker, or cause a sex
worker to take, any drug or other
substance with the intent to stupefy or
overpower that sex worker.
Penalty: Fine not exceeding 500 penalty units
or imprisonment for a term not
exceeding 5 years, or both.
(2) A person must not, for the purpose of inducing
any person to provide or continue to provide
sexual services in a sexual services business or
for the purpose of inducing any person to
provide or continue to provide him or her with
any fee or reward derived, directly or indirectly,
from the provision of sexual services in a sexual
services business
(a) intimidate, assault or threaten to assault
any person; or
(b) supply or offer to supply a prohibited
plant, prohibited substance, narcotic
substance or restricted substance, as
defined in the Poisons Act 1971, to any
person; or
(c) supply or offer to supply a controlled
substance, as defined in the Misuse of
Drugs Act 2001, to any person; or
9
s. 8 No. Sex Industry Offences 2005
(d) administer to another person, or cause
another person to take, any drug or other
substance with the intent to stupefy or
overpower that person; or
(e) make a false representation or otherwise
act fraudulently; or
(f) threaten to cause a person to be deported;
or
(g) exert any other form of unreasonable or
unfair pressure on any person.
Penalty: Fine not exceeding 1 500 penalty units
or imprisonment for a term not
exceeding 15 years, or both.
(3) A person who is indicted for but found not guilty
of an offence under subsection (2) may be
convicted of an offence under subsection (1) if
the evidence in the proceedings on the
indictment establishes that the person committed
an offence under subsection (1).
8. Soliciting and accosting
(1) A person must not, for the purpose of offering or
procuring sexual services in a sexual services
business, accost any person, or solicit or loiter,
in a public place.
Penalty: Fine not exceeding 20 penalty units.
(2) A person must not, for the purpose of offering or
procuring sexual services in a sexual services
business, accost a child.
10
2005 Sex Industry Offences No. s. 9
Penalty: Fine not exceeding 300 penalty units
or imprisonment for a term not
exceeding 3 years, or both.
9. Participation of children
(1) A person must not procure, or otherwise cause or
permit, a child to provide sexual services in a
sexual services business.
Penalty: Imprisonment for a term not exceeding
15 years.
(2) A person must not receive a fee or reward that he
or she knows, or must reasonably be expected to
know, is derived, directly or indirectly, from
sexual services provided by a child in a sexual
services business.
Penalty: Imprisonment for a term not exceeding
15 years.
(3) Subsection (2) does not apply to a fee or reward
received in the ordinary course of a business that
is not a sexual services business.
(4) In a proceeding for an offence against
subsection (1), it is a defence to the charge for
the accused to prove that, having taken all
reasonable steps to find out the age of the person
concerned, the accused believed on reasonable
grounds, at the time the offence is alleged to
have been committed, that the person concerned
was of or over the age of 18 years.
11
s. 10 No. Sex Industry Offences 2005
10. Extra-territorial application of offences
(1) If
(a) a person does an act or thing referred to
in section 7 or 9 outside, or partly
outside, Tasmania; and
(b) there is a real and substantial link, within
the meaning of subsection (2), between
doing the act or thing and Tasmania
section 7 or 9 applies to that act or thing as if it
had been done wholly within Tasmania.
(2) For the purpose of subsection (1), there is a real
and substantial link with Tasmania
(a) if a significant part of the conduct
relating to, or constituting, the doing of
the act or thing occurred in Tasmania; or
(b) where the act or thing was done wholly
outside Tasmania or partly within
Tasmania, if substantial harmful effects
arose in Tasmania.
11. Children on premises
(1) A self-employed sex worker must not, without
reasonable excuse, proof of which lies on that
sex worker, permit a child under his or her care
to be on any premises used by the self-employed
sex worker while sexual services are being
provided on those premises.
Penalty: Fine not exceeding 20 penalty units.
12
2005 Sex Industry Offences No. s. 12
(2) A person must not, without reasonable excuse,
proof of which lies on that person, permit a child
under his or her care to be on any premises used
by that person while he or she is receiving sexual
services from a self-employed sex worker.
Penalty: Fine not exceeding 20 penalty units.
12. Sex workers and clients to adopt safe sex practices
(1) A person must not, in a sexual services business,
provide or receive any sexual services that
involve sexual intercourse, or any other activity
with a similar or greater risk of acquiring or
transmitting a sexually transmissible infection,
unless a prophylactic is used.
Penalty: Fine not exceeding 500 penalty units.
(2) A person, while providing or receiving, in a
sexual services business, sexual services that
involve sexual intercourse, or any other activity
with a similar or greater risk of acquiring or
transmitting a sexually transmissible infection,
must not
(a) discourage the use of prophylactics; or
(b) misuse, damage or interfere with the
efficacy of any prophylactic used; or
(c) continue to use a prophylactic that he or
she knows, or could reasonably be
expected to know, is damaged.
Penalty: Fine not exceeding 500 penalty units.
(3) A person who provides or receives sexual
services in a sexual services business must take
13
s. 12 No. Sex Industry Offences 2005
all reasonable steps to minimise the risk of
acquiring or transmitting a sexually
transmissible infection.
Penalty: Fine not exceeding 500 penalty units.
14
2005 Sex Industry Offences No. s. 13
PART 3 POWERS OF POLICE OFFICERS
13. Power to arrest without warrant
(1) A police officer may arrest, without warrant, a
person who the police officer reasonably
believes is committing, has committed or is
likely to commit an offence against section 4, 7,
8, 9 or 14.
(2) If a police officer has reasonable grounds for
believing that a person is committing, has
committed or is likely to commit an offence
under this Act, the police officer may require
that person to give his or her full name, address
and date of birth.
(3) If a police officer has requested a person under
subsection (2) to give the person's full name,
address and date of birth, the police officer may
arrest, without warrant, that person if
(a) that person refuses to give his or her full
name, address or date of birth; or
(b) the police officer reasonably believes that
any name, address or date of birth given
by that person is false or incomplete.
(4) The powers conferred by this section are in
addition to the powers of a police officer under
the common law.
15
s. 14 No. Sex Industry Offences 2005
14. Hindering or obstructing police officers
A person must not hinder or obstruct a police
officer acting in the exercise of powers conferred
by this Act.
Penalty: In the case of
(a) a first offence, a fine not
exceeding 25 penalty units;
and
(b) a second or subsequent
offence, a fine not exceeding
50 penalty units.
15. Entry by police officers
(1) A police officer of the rank of sergeant or above
may enter premises without warrant if he or she
believes on reasonable grounds that
(a) an offence against section 4, 7, 8(2) or 9
has been, is being or is likely to be
committed on the premises; and
(b) it is necessary to enter on the premises
for the purpose of preventing the
commission or repetition of that offence,
investigating that offence or
apprehending an offender.
(2) For the purposes of subsection (1)(b),
investigating an offence includes
(a) searching premises; and
(b) photographing premises; and
16
2005 Sex Industry Offences No. s. 16
(c) visually recording premises; and
(d) seizing evidence.
(3) A police officer of the rank of sergeant or above
may use reasonable force if necessary to enter on
premises under subsection (1) and may obtain
any assistance that is reasonable and necessary
in the circumstances.
(4) The powers conferred by this section may be
exercised by a police officer below the rank of
sergeant if it is necessary to do so in order to
prevent the imminent commission of an offence
against section 4, 7, 8(2) or 9.
(5) As soon as practicable after a police officer
below the rank of sergeant exercises a power
conferred by this section, he or she must notify a
police officer of the rank of sergeant or above of
the exercise of that power.
16. Premises not to be used for commercial sexual
services businesses
(1) If the Commissioner of Police reasonably
believes that a person is operating or managing a
commercial sexual services business in or from
premises, the Commissioner of Police may serve
an order on any one or more of the following
persons requiring the person to cease operating
or managing the commercial sexual services
business:
(a) the owner of those premises;
17
s. 16 No. Sex Industry Offences 2005
(b) a person who the Commissioner of
Police reasonably believes leases or
otherwise occupies the premises.
(2) If the owner of premises served with an order
under subsection (1)(a) leases the premises
referred to in the order to a third party or allows
a third party to occupy the premises, he or she
must immediately
(a) serve the order on the third party; and
(b) inform the Commissioner of Police of the
name and address of the third party.
Penalty: Fine not exceeding 100 penalty units.
(3) If a person served with an order under
subsection (1)(b) is not the occupier of the
premises referred to in the order, he or she must
immediately notify the Commissioner of Police
of that fact.
(4) The service of an order under subsection (1) or
(2) allows either party to a lease agreement to
terminate the lease agreement without being in
breach of that agreement.
(5) If, 7 days after the service of an order under
subsection (1), the Commissioner of Police
reasonably believes that a commercial sexual
services business is still operating in or from the
premises referred to in the order, he or she may
(a) issue a notice forbidding entry to the
premises, without the permission of the
Commissioner of Police; and
18
2005 Sex Industry Offences No. s. 16
(b) cause a copy of the notice referred to in
paragraph (a) to be affixed to those
premises; and
(c) publish a copy of that notice in the public
notices section of a daily newspaper
circulating in the area where the premises
are located.
(6) A person must comply with a notice affixed to
premises under subsection (5).
Penalty: Fine not exceeding 500 penalty units.
(7) It is a defence to a charge under subsection (6)
for a person to establish that the premises are the
person's usual residential premises.
(8) A person must not remove or tamper with a
notice referred to in subsection (5).
Penalty: Fine not exceeding 500 penalty units.
(9) If the Commissioner of Police is satisfied that a
commercial sexual services business is not, or is
no longer, operating in or from premises in
respect of which a notice has been issued under
subsection (5)(a), he or she must revoke the
issue of the notice.
(10) If the Commissioner of Police revokes the issue
of a notice under subsection (9), he or she may
(a) cause the notice to be removed from
those premises; and
(b) publish a revocation of the notice in the
public notices section of a daily
newspaper circulating in the area where
the premises are located.
19
s. 17 No. Sex Industry Offences 2005
17. Revocation of orders to cease operating commercial
sexual services businesses
(1) A person on whom an order is served under
section 16(1) or (2) may apply to a magistrate
for a revocation of the order.
(2) For the purpose of an application under
subsection (1), the Commissioner of Police is
taken to be the respondent to the application.
(3) In the hearing of an application for revocation of
an order, a magistrate may do the following if
the Commissioner of Police requests the
magistrate to do so:
(a) hear evidence from the Commissioner of
Police, or his or her nominee, in respect
of any criminal intelligence upon which
his or her reasonable belief under
section 16(1) was formed, in the absence
of the public, the applicant and the
applicant's representative in order to
prevent the disclosure of that criminal
intelligence;
(b) ensure that, in giving the reasons for his
or her decision or otherwise, the
magistrate does not disclose the
existence or content of any such criminal
intelligence.
(4) A magistrate may revoke an order if the
applicant establishes that a commercial sexual
services business is not operating in or from the
premises referred to in the order.
20
2005 Sex Industry Offences No. s. 18
18. Power of police officers at or above rank of sergeant
to require financial information
(1) A police officer at or above the rank of sergeant
who reasonably believes that a person is a
commercial operator may require the person to
state the source of any income including that
appearing in any financial records relating to the
person.
(2) A person must not, in respect of any information
given to a police officer under subsection (1)
(a) give information that the person knows is
false or misleading; or
(b) fail to give relevant information of which
the person has knowledge.
Penalty: Fine not exceeding 10 penalty units.
21
s. 19 No. Sex Industry Offences 2005
PART 4 MISCELLANEOUS AND SUPPLEMENTAL
19. Protection from liability
No liability attaches to the Crown for an act or
omission done in good faith in the performance
or exercise, or purported performance or
exercise, of a function, power or duty under this
Act.
20. Regulations
The Governor may make regulations for the
purposes of this Act.
21. Administration of Act
Until provision is made in respect of this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Justice and Industrial
Relations; and
(b) the department responsible to that
Minister in respect of the administration
of this Act is the Department of Justice.
22
2005 Sex Industry Offences No. s. 22
PART 5 CRIMINAL CODE ACT 1924 AMENDED
22. Principal Act
In this Part, the Criminal Code Act 1924* is
referred to as the Principal Act.
23. Principal Act amended
Schedule 1 to the Principal Act is amended as
follows:
(a) by omitting section 128;
(b) by omitting from section 143(1)
"common bawdy-house,";
(c) by omitting subsection (2) from section
143.
*No. 69 of 1924
23
s. 24 No. Sex Industry Offences 2005
PART 6 EVIDENCE (CHILDREN AND SPECIAL
WITNESSES) ACT 2001 AMENDED
24. Principal Act
In this Part, the Evidence (Children and Special
Witnesses) Act 2001* is referred to as the
Principal Act.
25. Section 3 amended (Interpretation)
The definition of "prescribed proceeding" in
section 3 of the Principal Act is amended as
follows:
(a) by omitting from paragraph (d) "35(3) of
the Police Offences Act 1935" and
substituting "35(3) of the Police Offences
Act 1935; or";
(b) by inserting the following paragraph after
paragraph (d):
(e) a proceeding in which a person
has been charged with a crime
under section 4, 7, 8(2) or 9 of the
Sex Industry Offences Act 2005;
*No. 79 of 2001
24
2005 Sex Industry Offences No. s. 26
PART 7 JUSTICES ACT 1959 AMENDED
26. Principal Act
In this Part, the Justices Act 1959* is referred to
as the Principal Act.
27. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by
inserting after paragraph (b) in the definition of
"affected person" the following paragraph:
(c) a crime under section 4, 7, 8(2) or 9 of
the Sex Industry Offences Act 2005;
*No. 77 of 1959
25
s. 28 No. Sex Industry Offences 2005
PART 8 POLICE OFFENCES ACT 1935 AMENDED
28. Principal Act
In this Part, the Police Offences Act 1935* is
referred to as the Principal Act.
29. Section 8 amended (Begging, imposition,
prostitution, &c.)
Section 8 of the Principal Act is amended as
follows:
(a) by omitting paragraph (c) from
subsection (1);
(b) by omitting paragraphs (b) and (c) from
subsection (1A);
(c) by omitting subsection (2).
30. Section 10 amended (Disorderly houses)
Section 10(1) of the Principal Act is amended by
omitting paragraph (b).
31. Section 57 amended (Power of police officers to
enter certain places)
Section 57(1)(d) of the Principal Act is amended
as follows:
*No. 44 of 1935
26
2005 Sex Industry Offences No. s. 31
(a) by omitting "common brothel or house
for the reception of prostitutes, or any";
(b) by omitting "loose and".
Government Printer, Tasmania 27