Western Australian Consolidated Acts Western Australian Consolidated Acts1 This is a compilation of the Prostitution Act 2000 and
includes the amendments made by the other written laws referred to in the
following table 1a. The table also contains information about
any reprint.
|
Short title |
Number and year |
Assent |
Commencement |
|---|---|---|---|
|
17 of 2000 |
22 Jun 2000 |
29 Jul 2000 (see s. 2 and Gazette
28 Jul 2000 p. 3987) |
|
|
Prostitution Amendment Act 2002 |
9 of 2002 |
28 Jun 2002 |
28 Jun 2002 (see s. 2) |
|
Prostitution Amendment Act 2003 |
33 of 2003 |
23 Jun 2003 |
23 Jun 2003 (see s. 2) |
|
Sentencing Legislation Amendment and Repeal
Act 2003 s. 87 |
50 of 2003 |
9 Jul 2003 |
15 May 2004 (see s. 2 and Gazette
14 May 2004 p. 1445) |
|
Criminal Code Amendment Act 2004
s. 58 |
4 of 2004 |
23 Apr 2004 |
21 May 2004 (see s. 2) |
|
34 of 2004 |
20 Oct 2004 |
1 Mar 2006 (see s. 2 and Gazette 14 Feb 2006 p.
695) |
|
|
Acts Amendment (Court of Appeal) Act 2004
s. 37 |
45 of 2004 |
9 Nov 2004 |
1 Feb 2005 (see s. 2 and Gazette
14 Jan 2005 p. 163) |
|
Courts Legislation Amendment and Repeal Act 2004
s. 141 |
59 of 2004 |
23 Nov 2004 |
1 May 2005 (see s. 2 and Gazette
31 Dec 2004 p. 7128) |
|
Criminal Law Amendment (Simple Offences) Act 2004
s. 82 |
70 of 2004 |
8 Dec 2004 |
31 May 2005 (see s. 2 and Gazette
14 Jan 2005 p. 163) |
|
Criminal Procedure and Appeals (Consequential and Other
Provisions) Act 2004 s. 78 and 80 |
84 of 2004 |
16 Dec 2004 |
2 May 2005 (see s. 2 and Gazette
31 Dec 2004 p. 7129 (correction in Gazette
7 Jan 2005 p. 53)) |
|
Reprint 1: The Prostitution Act 2000 as at
22 Jul 2005 (includes amendments listed above except those in the
Children and Community Services Act 2004) |
|||
|
Censorship Amendment Act 2006
s. 4(2) |
10 of 2006 |
8 May 2006 |
10 Jun 2006 (see s. 2 and Gazette
9 Jun 2006 p. 2029) |
|
Nurses and Midwives Act 2006
s. 114 |
50 of 2006 |
6 Oct 2006 |
19 Sep 2007 (see s. 2 and Gazette
18 Sep 2007 p. 4711) |
|
Criminal Investigation (Consequential Provisions) Act
2006 Pt. 13 |
59 of 2006 |
16 Nov 2006 |
1 Jul 2007 (see s. 2 and Gazette
22 Jun 2007 p. 2838) |
|
Criminal Law and Evidence Amendment Act 2008
s. 69 |
2 of 2008 |
12 Mar 2008 |
27 Apr 2008 (see s. 2 and Gazette
24 Apr 2008 p. 1559) |
|
22 of 2008 |
27 May 2008 |
1 Dec 2008 (see s. 2 and Gazette
25 Nov 2008 p. 4989) |
|
1a On the date as at which this compilation was prepared,
provisions referred to in the following table had not come into operation and
were therefore not included in this compilation. For the text of the provisions
see the endnotes referred to in the table.
Provisions
that have not come into operation
|
Short title |
Number and year |
Assent |
Commencement |
|---|---|---|---|
|
Prostitution Amendment Act 2008 Pt.
2 4 |
13 of 2008 |
14 Apr 2008 |
To be proclaimed (see s. 2(b)) |
2 The provisions in this Act amending those Acts have been
omitted under the Reprints Act 1984 s. 7(4)(e).
3 Footnote no longer applicable.
4 On the date as at which this compilation was prepared, the
Prostitution Amendment Act 2008 Pt. 2 had not come into operation.
It reads as follows:
“
Part 2 — Prostitution
Act 2000 amended
The amendments in this Part are to the Prostitution
Act 2000.
4. Section 1
amended
Section 1 is amended by deleting “Prostitution
Act” and inserting instead —
“ Sexual Services Act ”.
5. Section 3
amended
(1) Section 3 is amended as follows:
(a) in the definition of “client” by deleting “given to
that term in” and inserting instead —
“ it has under ”;
(b) after the definition of “public place” by deleting the
full stop and inserting a semicolon instead;
(c) by deleting the definitions of “act as a prostitute”,
“act of prostitution”, “prostitute” and
“prostitution”.
(2) Section 3 is amended by inserting in the appropriate alphabetical
positions —
“
act as a sex worker means to take part, as a sex worker, in
a commercial sexual act;
CEO means the chief executive officer of the
Department;
certificate means a certificate issued or renewed under
section 21G;
certificate holder means the holder of a manager’s
certificate or an operator’s certificate;
commercial sexual act has the meaning it has under
section 4;
Department means the department of the Public Service
principally assisting the Minister in the administration of Part 3A of this
Act;
incapable person means a person who, because of intellectual
disability, mental illness, brain damage or senility, is incapable —
(a) of understanding the nature and effect of a commercial sexual act;
or
(b) of guarding himself or herself against sexual exploitation;
individual sex worker means a person who solely owns and
carries on a sexual service business —
(a) involving the provision of a commercial sexual act by that person
only; and
(b) where that person has full control over his or her individual earnings
from taking part in commercial sexual acts;
manage, in relation to a sexual service business, means
undertake the immediate management, direction or control of the conduct of the
sexual service business;
manager means a person who holds a manager’s
certificate;
officer, in relation to a proprietary company,
means —
(a) a director or secretary of the company; or
(b) a person who exercises or exerts control or influence over the
company, or is in a position to do so; or
(c) a person who is a shareholder of the company;
operate, in relation to a sexual service business,
means —
(a) whether alone or with others, own, operate or carry on the sexual
service business; or
(b) employ, supervise or direct any person who undertakes the immediate
management, direction or control of the conduct of the sexual service business;
or
(c) exercise or exert, or be in a position to exercise or exert, control
or substantial influence over the manner in which the sexual service business is
conducted;
operator means a person who holds an operator’s
certificate;
proprietary company has the meaning given to that term in
the Commonwealth Corporations Act 2001 section 9;
register means the register referred to in
section 21I;
sexual service business means the business of providing, or
arranging the provision of, a commercial sexual act;
sex worker has the meaning it has under
section 4;
small owner-operated business means a sexual service
business —
(a) in which not more than 2 sex workers work; and
(b) where each of those sex workers has full control over his or her
individual earnings from taking part in commercial sexual acts.
”.
6. Section 4
amended
Section 4 is amended as follows:
(a) by deleting “prostitution it means prostitution” and
inserting instead —
“ a commercial sexual act it means a sexual act
”;
(b) by deleting “prostitute” and inserting
instead —
“ sex worker ”.
After section 4 the following section is inserted in
Part 1 —
“
(1) The CEO may delegate to a person any power or duty of the CEO under
another provision of this Act.
(2) The delegation must be in writing signed by the CEO.
(3) A person to whom a power or duty is delegated under this section
cannot delegate that power or duty.
(4) A person exercising or performing a power or duty that has been
delegated to the person under this section is to be taken to do so in accordance
with the terms of the delegation unless the contrary is shown.
(5) Nothing in this section limits the ability of the CEO to perform a
function through an officer or agent.
”.
The heading to Part 2 is amended by deleting
“prostitution” and inserting instead —
9. Section 7
amended
Section 7(1) is amended as follows:
(a) after paragraph (d) by inserting —
“
(da) use any power or authority arising out of —
(i) any occupational or vocational position held by the person;
or
(ii) any relationship existing between the person and anyone;
or
(db) make an accusation or disclosure (whether true or
false) —
(i) of any offence committed by anyone; or
(ii) of any other misconduct that is likely to damage seriously the
reputation of anyone; or
(iii) that anyone is unlawfully in Australia;
or
”;
(b) by deleting “prostitute.” and inserting
instead —
“
sex worker or to surrender the proceeds of acting as a sex
worker.
”;
(c) after each of paragraphs (a), (b) and (c) by
inserting —
“ or ”.
10. Section 8 replaced by
sections 8 and 8A
Section 8 is repealed and the following sections are inserted
instead —
“
8. Minimising risk of acquiring or
transmitting prescribed infection or virus
(1) A person must not take part in a commercial sexual act without using a
prophylactic that is appropriate for preventing the transmission of bodily fluid
from one person to another.
(2) A person must not, for the purpose of taking part in a commercial
sexual act, state or imply that a medical examination of that person means that
he or she is not infected, or likely to be infected, with a prescribed infection
or virus.
(3) A person who takes part in a commercial sexual act must take all other
reasonable steps to minimise the risk of acquiring or transmitting a prescribed
infection or virus.
Penalty: a fine of $10 000.
8A. Prohibition on certain commercial sexual
acts if infected
A person must not take part in a commercial sexual act involving vaginal,
anal or oral penetration, including cunnilingus, if he or she has a prescribed
infection or virus.
Penalty:
(a) for a first offence, a fine of $20 000;
(b) for a second or subsequent offence, imprisonment for three
years.
”.
11. Section 9
amended
Section 9(b) is amended by deleting “any business involving
the provision of prostitution.” and inserting instead —
“ a sexual service business. ”.
12. Section 10
amended
Section 10(1)(b) is deleted and the following paragraph is inserted
instead —
“
(b) any sexual service business,
”.
After section 10 the following section is
inserted —
“
10A. Restrictions on advertising commercial
sexual acts
(1) A person must not advertise a commercial sexual act or authorise the
advertising of a commercial sexual act other than through —
(a) a newspaper or periodical —
(i) in the classified advertisements section of the newspaper or
periodical; and
(ii) in a prescribed manner (if any);
or
(b) the computer network known as the internet in a prescribed manner (if
any).
Penalty: a fine of $50 000.
(2) An advertisement for a sexual service business that is not a small
owner-operated business must carry the certificate number of an operator or
manager of the business providing the advertised service.
(3) A commercial sexual act is advertised through the computer network
known as the internet if an advertisement for the act is sent, or made
accessible through, the network or any part of it.
(4) In this section —
advertise means advertise by any words, or any pictorial or
other representation, used to notify the availability of, or promote the
provision of, a commercial sexual act, either generally or
specifically.
”.
14. Sections 13A and 13B
inserted
After section 13 the following sections are inserted in Part 2
Division 1 —
“
13A. Refusal to take part in commercial
sexual act
(1) Despite anything in a contract to take part in a commercial sexual
act, a person may, at any time, refuse to take part in, or to continue to take
part in, a commercial sexual act.
(2) The fact that a person has entered into a contract to take part in a
commercial sexual act does not of itself constitute consent for the purposes of
the criminal law if he or she does not consent, or withdraws his or her consent,
to taking part in a sexual act.
(3) Nothing in this section affects a right (if any) to rescind or cancel,
or to recover damages for, a contract for taking part in a commercial sexual act
that is not undertaken.
13B. Refusal to work as sex worker does not
affect entitlements
(1) A person’s entitlements under the Workers’ Compensation
and Injury Management Act 1981 may not be lost or affected in any way
by his or her being capable of working as a sex worker if he or she refuses to
do, or to continue to do, that kind of work.
(2) In this section —
refuse means refuse to take part in commercial sexual acts
in general, rather than a refusal to take part in a particular commercial sexual
act or at a particular time.
”.
15. Part 2 Division 2
heading replaced
The heading to Part 2 Division 2 is deleted and the following
heading is inserted instead —
16. Section 14
amended
The penalty provision at the foot of section 14 is repealed and the
following penalty is inserted instead —
“
Penalty applicable to paragraph (a): a fine of $6 000;
Penalty applicable to paragraphs (b) and (c): Imprisonment for
2 years.
”.
17. Section 17
amended
(1) Section 17(1) is amended by deleting “an act of
prostitution,” and inserting instead —
“ a commercial sexual act, ”.
(2) Section 17(3) is amended by deleting “prostitution.”
and inserting instead —
“ a commercial sexual act. ”.
18. Section 20
amended
(1) Section 20(1) is amended by deleting “an act of
prostitution” and inserting instead —
“ a commercial sexual act ”.
(2) Section 20(2) is amended by deleting “act of
prostitution” and inserting instead —
“ commercial sexual act ”.
19. Section 21
amended
Section 21(a) and (b) and “or” after paragraph (a)
are deleted and the following is inserted instead —
“
(a) a commercial sexual act is or may be taking place; or
(b) a sexual service business other than a sexual service business being
carried on by an individual sex worker is being carried on,
”.
20. Section 21A and Part 3A
inserted
Before Part 4 the following is inserted —
“
21A. Obligations, in relation to children,
of those who operate sexual service business
(1) A person who operates a sexual service business must ensure that a
child is not employed or engaged as a sex worker in the business.
(2) An offence under subsection (1) is a crime.
Penalty: Imprisonment for 5 years.
Summary conviction penalty: Imprisonment for 3 years.
(3) A person who manages or operates a sexual service business must ensure
that no child is present at a place at or from which the business is carried
on.
Penalty:
(a) for a first offence, a fine of $24 000;
(b) for a second or subsequent offence, imprisonment for
3 years.
(4) A person who operates a sexual service business must not employ or
engage a person as a sex worker in the business unless that person provides
evidence to the person operating the business that the person is not a child by
one of the following means that bears a photograph of the person and indicates
by reference to the person’s date of birth or otherwise that the person
has reached 18 years of age —
(a) a current passport;
(b) a current Australian driver’s licence;
(c) a prescribed document.
Penalty:
(a) for a first offence, a fine of $24 000;
(b) for a second or subsequent offence, imprisonment for
3 years.
(5) A person who receives evidence under subsection (4)
must —
(a) make a copy of the evidence; and
(b) make a record of when the evidence was provided and to whom the
evidence was provided; and
(c) keep the copy of the evidence and the record for a period of
3 years from the day on which the evidence was copied or the record
made.
Penalty:
(a) for a first offence, a fine of $24 000;
(b) for a second or subsequent offence, imprisonment for
3 years.
Part 3A — Sexual
service business
Division 1 — Requirement
for certificate
21B. Those who must hold a
certificate
(1) A person must not operate a sexual service business unless that person
holds an operator’s certificate.
Penalty: Imprisonment for 3 years.
(2) A person must not manage a sexual service business unless that
person —
(a) holds a manager’s certificate; or
(b) is an individual who holds an operator’s certificate.
Penalty: Imprisonment for 3 years.
(3) Subsections (1) and (2) do not apply to an individual sex
worker or a small owner-operated business.
Division 2 — Manager’s
or operator’s certificate
21C. Who may apply for a certificate or
renewal
(1) An applicant for a manager’s certificate or for the renewal of a
manager’s certificate must be an individual.
(2) An applicant for an operator’s certificate or for the renewal of
an operator’s certificate must be an individual or a proprietary company,
the shareholders of which are all individuals.
An application for a manager’s or operator’s certificate or
the renewal of such a certificate must —
(a) be made to the CEO in a form approved by the CEO; and
(b) be accompanied by any document or information specified in the form
for either or both of the following —
(i) verifying the background and reputation of the applicant;
(ii) relating to a matter referred to in section 21G;
and
(c) in the case of an application for an operator’s certificate,
state the name and address of any other person with whom the applicant will
operate a sexual service business; and
(d) in the case of an application for an operator’s certificate, the
location of the place at or from which the applicant’s sexual service
business is to be carried on; and
(e) be accompanied by the prescribed fee (if any).
21E. Further information relevant to
application
(1) An applicant for a certificate or the renewal of a certificate must
provide the CEO with any additional document or information that the CEO
requires, in any particular case, that is or could be relevant to making a
decision on the application.
Penalty: a fine of $6 000.
(2) If the CEO requires under subsection (1) that an additional
document or information be provided, the CEO does not have to consider the
application, or consider it further, until the applicant complies with the
requirement.
21F. Report and information provided by
Commissioner of Police
(1) The CEO must send a copy of the application to the Commissioner of
Police for a report on the eligibility of the applicant for a certificate or the
renewal of a certificate.
(2) The Commissioner of Police must provide a report to the CEO within
4 weeks of receipt of the copy of the application or such longer period as
is agreed between the Commissioner and the CEO.
(3) The Commissioner of Police may in writing direct the CEO not to
communicate or divulge to any other person any information to which this
subsection applies and specified in the direction that the Commissioner
considers —
(a) might prejudice the safety of a person; or
(b) might prejudice the effectiveness of an investigation or the
prosecution of a person for an offence; or
(c) might reveal the identity of an informant; or
(d) might reveal confidential police practices or methodology;
or
(e) might otherwise be contrary to the public interest.
(4) Subsection (3) applies to the following information —
(a) information in a report provided under subsection (2);
(b) information otherwise provided to the CEO by the Commissioner of
Police about a manager, operator or the operation of a sexual service
business.
(5) Subject to the State Administrative Tribunal Act 2004
section 24, the CEO must comply with the direction.
(6) Subsections (3) and (5) apply despite the Freedom of
Information Act 1992.
21G. Restrictions on who can have a
certificate
(1) The CEO may issue a certificate to, or renew the certificate of, an
applicant if satisfied that the applicant —
(a) is an individual who has reached 18 years of age; and
(b) has no charge pending of an alleged offence under the law of this
State, the Commonwealth, another State or a Territory that involves an act of
violence against the person or involves a victim who was a child or incapable
person; and
(c) has not been declared under the Misuse of Drugs Act 1981
section 32A to be a drug trafficker; and
(d) has not been found guilty of an offence described in Schedule 2;
and
(e) has not been found guilty of an offence under the law of the
Commonwealth, another State or a Territory, that the CEO considers to be
substantially similar to an offence described in Schedule 2; and
(f) has not been convicted, in this or another State or a Territory, of
any indictable offence, including an offence under a law of the Commonwealth,
any other State or a Territory, that is triable by jury that the CEO considers
would make it inappropriate for the CEO to issue the certificate; and
(g) has not had a certificate issued under this Act to the applicant
revoked within the period of 5 years before the application is made;
and
(h) is not the subject of a violence restraining order within the meaning
given in the Restraining Orders Act 1997 section 3;
and
(i) is otherwise of good character and is a fit and proper person to hold
a certificate; and
(j) is ordinarily resident in Western Australia and —
(i) is permanently resident in Australia; or
(ii) is an Australian citizen;
and
(k) complies with any other prescribed matter.
(2) If an application for an operator’s certificate or the renewal
of an operator’s certificate is made by a proprietary company, the CEO may
issue a certificate or renew the certificate if satisfied, with respect to each
person who is an officer of the company, of any matter referred to in
subsection (1)(a) to (k) of which the CEO would need to be satisfied
if that person were the applicant.
(1) A certificate may be issued or renewed for a period not exceeding
one year.
(2) The duration of a certificate must be stated in the
certificate.
(3) If a certificate is renewed after, but within 28 days of, the day
on which it expired, the renewal is to be taken for all purposes to have taken
effect on the day immediately after the day on which the certificate
expired.
21I. Register of certificate
holders
The CEO is to keep an accurate and up-to-date register of all present and
former certificate holders in such manner and form as the CEO determines and in
respect of each certificate holder is to record —
(a) the name of the certificate holder; and
(b) the business, or other, address of the certificate holder;
and
(c) in the case of an operator, the name and address of any other person
with whom the operator operates the operator’s sexual service business;
and
(d) in the case of an operator, the location of the place at or from which
the operator’s sexual service business is being carried on; and
(e) details of the suspension or revocation of a certificate of the
certificate holder under section 21N; and
(f) such other information, if any, as is prescribed by the
regulations.
(1) The register must be available for inspection by an officer during
normal office hours.
(2) The register may be made available electronically for inspection by an
officer.
(3) An officer may, on application to the CEO in respect of the register
or an entry in the register, and payment of the fee prescribed by the
regulations, if any, obtain a certified copy of the register or the
entry.
(4) No fee is payable under subsection (3) if the application is made
by a police officer for the purpose of performing a function of a police officer
under this Act.
(5) In this section —
officer means —
(a) a police officer; or
(b) a person of a class specified in the regulations for the purposes of
this definition.
(1) A certificate that is issued or renewed is to contain prescribed
particulars.
(2) The CEO must give the certificate holder a new certificate if the CEO
renews a certificate.
(3) The CEO may, on payment of the prescribed fee, if any, issue a
certified copy of a certificate to the holder of the certificate.
21L. Display of certificate by operator or
manager
(1) A manager of a sexual service business that is being carried on at or
from a place must ensure that the manager’s current certificate or a
certified copy of the certificate is displayed at the place when the manager is
managing the business so that it is visible to a person on entering the
place.
Penalty: a fine of $12 000.
(2) An operator of a sexual service business that is being carried on at
or from a place must ensure that the current certificate of every operator of
the business or a certified copy of the certificate is displayed at the place so
that it is visible to a person on entering the place.
Penalty: a fine of $12 000.
(3) A person must not alter or deface a certificate.
Penalty: a fine of $12 000.
Division 3 — Suspension
or revocation of certificate
(1) The CEO may for the purposes of determining whether or not a
certificate should be suspended or revoked —
(a) require a person to produce to the CEO any document or other thing
concerning the determination that is in the possession or under the control of
the person; and
(b) inspect any document or other thing produced to the CEO and retain it
for such reasonable period as the CEO thinks fit, and make copies of a document
or any of its contents; and
(c) require a person —
(i) to give the CEO such information as the CEO requires; and
(ii) to answer any question put to that person,
in relation to the determination.
(2) A requirement made under subsection (1)(a) —
(a) must be made by notice in writing given to the person required to
produce the document or other thing; and
(b) must specify the time at or within which the document or other thing
is to be produced; and
(c) may, by its terms, require that the document or other thing required
be produced at a place and by means specified in the requirement; and
(d) where the document required is not in a readable format, is to be
treated as a requirement to produce —
(i) the document itself; and
(ii) the contents of the document in a readable format.
(3) A requirement made under subsection (1)(c) —
(a) may be made orally or by notice in writing served on the person
required to give information or answer a question, as the case may be;
and
(b) must specify the time at or within which the information is to be
given or the question is to be answered, as the case may be; and
(c) may, by its terms, require that the information or answer
required —
(i) be given orally or in writing; or
(ii) be given at or sent or delivered to a place specified in the
requirement; or
(iii) in the case of written information or answers be sent or delivered
by means specified in the requirement; or
(iv) be verified by statutory declaration.
(4) If under subsection (1)(a) the CEO requires a person to produce
any document or other thing concerning the determination that is in the
possession or under the control of the person, the CEO is to inform that person
that the person is required under this Act to produce the document or
thing.
(5) If under subsection (1)(c) the CEO requires a person to give
information or answer a question, the CEO is to inform that person that the
person is required under this Act to give the information or answer the
question.
21N. Suspension or revocation of a
certificate
(1) The CEO may by notice given to a certificate holder revoke the
holder’s certificate if —
(a) the CEO —
(i) is no longer satisfied as to any matter about which the CEO would be
required to be satisfied before issuing the certificate; or
(ii) comes to know of any other matter that would prevent the CEO from
issuing the certificate if an application were only then being made for
it;
and
(b) the CEO has informed the certificate holder that the CEO is
considering revoking the certificate and given the certificate holder a
reasonable opportunity to be heard or make written representations.
(2) The CEO may by notice given to a certificate holder suspend the
holder’s certificate for a period specified in the notice if the CEO has
informed the certificate holder that the CEO is considering suspending or
revoking the certificate, as is applicable to the case, and given the
certificate holder a reasonable opportunity to be heard or make written
representations.
Division 4 — Conducting
a sexual service business
21O. Operator or manager must be
present
(1) A person who operates a sexual service business at or from a place
must ensure that an operator of the business who is an individual or a manager
of the business is present at the place at all times during which the business
is being carried on at or from the place.
Penalty:
(a) for a first offence, a fine of $24 000;
(b) for a second or subsequent offence, imprisonment for
3 years.
(2) Subsection (1) does not apply to an individual sex worker or a
small owner-operated business.
21P. Sex worker must be an employee or
contractor
(1) A person who manages or operates a sexual service business must ensure
that a person does not act as a sex worker in the business unless —
(a) the person has entered into a contract of service with, or been
engaged to work for the purposes of the business under a contract for service
by, a person who operates the business; and
(b) whenever acting as a sex worker in the business, the person is acting
in the course of the person’s employment or engagement under that
contract.
Penalty: a fine of $50 000.
(2) This section applies to a person who acts as a sex worker in a sexual
service business whether or not the person is also an individual sex
worker.
(3) Subsection (1) does not apply to an individual sex worker or a
small owner-operated business.
21Q. Sexual service business not to operate
at or from licensed premises
A person must not operate a sexual service business at or from licensed
premises within the meaning given in the Liquor Control Act 1988
section 3(1).
Penalty: a fine of $50 000.
21R. One small owner-operated business to
operate from premises
A person must not operate a small owner-operated business at or from
premises at or from which another sexual service business is
operating.
Penalty: a fine of $50 000.
Division 5 — Protection
of sex workers and clients
21S. Obligations of operators and
managers
(1) A person who manages or operates a sexual service business
must —
(a) take all reasonable steps to ensure that a sex worker employed or
engaged by the business does not take part in a commercial sexual act unless a
prophylactic sheath or other appropriate barrier is used if the act involves
vaginal, anal or oral penetration or another activity with a similar or greater
risk of acquiring or transmitting a prescribed infection or virus; and
(b) take all reasonable steps to give health information (whether oral or
written) to sex workers and clients of the business; and
(c) display health information prominently in any place at or from which
the business is carried on; and
(d) not state or imply that a medical examination of a sex worker employed
or engaged by the business means that the sex worker is not infected, or likely
to be infected, with a prescribed infection or virus; and
(e) take all other reasonable steps to minimise the risk of a sex worker
employed or engaged by or a client of the business acquiring or transmitting a
prescribed infection or virus; and
(f) display information prominently in any place at or from which the
business is carried on regarding the right of a sex worker to refuse to take
part in, or continue to take part in, a sexual act.
Penalty: a fine of $12 000.
(2) In this section —
health information means information on sex practices and
services for the prevention and treatment of a prescribed infection or
virus.
21T. Prevention of penetrative sex if
infected
(1) A person who manages or operates a sexual service business must not
permit or encourage a person to act as a sex worker and engage in acts involving
vaginal, anal or oral penetration, including cunnilingus, if the first-mentioned
person knows, or could reasonably be expected to know, that the person has a
prescribed infection or virus.
Penalty: Imprisonment for 2 years.
(2) A person charged with an offence under subsection (1) has a
defence if it is proved that the person exercised all due diligence as ought to
have been exercised having regard to the nature of the person’s functions
and to all the circumstances to prevent a person whom the person charged knows,
or could reasonably be expected to know, has a prescribed infection or virus
from acting as a sex worker in the sexual service business.
21U. Prophylactic sheath to be provided for
use
A person who manages or operates a sexual service business must give a
prophylactic sheath free of charge to a client and a sex worker for use when
taking part in a commercial sexual act at the sexual service business.
Penalty: a fine of $12 000.
21V. Entry by police officer for certain
purposes
(1) If a police officer has a reasonable suspicion —
(a) that a place is not a residence; and
(b) that a sexual service business that is not a small owner-operated
business is being carried on at or from the place,
the officer may enter the place to ensure that —
(c) an operator or a manager of the business has a certificate;
or
(d) an operator or a manager of the business is present at the place;
or
(e) a certificate or a certified copy of the certificate of an operator or
a manager of the business is displayed at the place so that it is visible to a
person on entering the place.
(2) If a police officer enters a place under subsection (1), the
police officer may require a person apparently operating or managing a sexual
service business at or from the place to give the officer his or her name and
address and provide proof of his or her identity.
Division 7 — Review
by State Administrative Tribunal
(1) A person who is aggrieved by a decision of the CEO —
(a) to refuse to issue or renew a certificate; or
(b) to suspend or revoke a certificate,
may apply to the State Administrative Tribunal for a review of the
decision.
(2) The Commissioner of Police is a party to a review.
(3) Despite the State Administrative Tribunal Act 2004
section 61, if information is specified in a direction under
section 21F(3), the CEO or the Commissioner of Police may apply to the
State Administrative Tribunal for an order that the information is not to be
disclosed to the applicant, the applicant’s representative or any other
person.
(4) The Tribunal is to make an order under subsection (3) if it is
satisfied that disclosure of the information —
(a) might prejudice the safety of a person; or
(b) might prejudice the effectiveness of an investigation or the
prosecution of a person for an offence; or
(c) might reveal the identity of an informant; or
(d) might reveal confidential police practices or methodology;
or
(e) might otherwise be contrary to the public interest.
(5) The State Administrative Tribunal Act 2004
section 61(3) applies to an order under subsection (4) as if a
reference in section 61(3) to subsection (2) were a reference to
subsection (4) of this section.
(6) An application under subsection (3) may be made without notice to
the applicant and may be heard and determined in the absence of the
applicant.
(7) The hearing by the Tribunal of an application under
subsection (3) is not to be held in public and the Tribunal may order that
no person is to be in the room or place without the Tribunal’s
permission.
(8) For the purposes of the State Administrative Tribunal
Act 2004, information in respect of which an order is made under
subsection (4) is protected matter.
Division 8 — Planning
and development controls
21X. Approvals for existing well managed
places
(1) If land was being used for the purpose of a sexual service business
(other than a small owner-operated business) immediately before
12 September 2006 and continued to be used for that purpose up to and
including the day on which the Prostitution Amendment Act 2008
section 1 came into operation, the use of the land, subject to the approval
of the CEO, for that purpose is a use permitted by the planning scheme or
interim development order relating to the land.
(2) An application for the approval of the CEO under subsection (1)
is to be made in the prescribed manner.
(3) In considering an application for approval under subsection (1)
the CEO is to liaise with the local government of the district in which the land
is located and the Commissioner of Police and is to have regard to —
(a) whether the manner of the use of the land for the business has been
the subject of complaints before 12 September 2006 from residents or
occupiers in the area; and
(b) whether the operation of the business causes, or is likely to cause, a
disturbance in the neighbourhood when taking into account the number of sex
workers working in the business, its hours of operation, the noise and vehicular
and pedestrian traffic; and
(c) whether the operation of the business interferes, or is likely to
interfere, with the amenity of the neighbourhood.
(4) The CEO is to give approval under subsection (1) unless, after
having regard to the matters referred to in subsection (3), the CEO is
satisfied that the business is not being managed appropriately.
(1) If a development application within the meaning given in the
Planning and Development Act 2005 section 4(1) is made to a
responsible authority for the development of land for the purpose of a sexual
service business, the authority must —
(a) consider the application as if that purpose is a use that is not
permitted unless the responsible authority has exercised its discretion by
granting planning approval; and
(b) in exercising its discretion, also have regard to whether the
business —
(i) is likely to cause a nuisance to ordinary members of the public using
the area in which the land is situated; and
(ii) is incompatible with the existing character or use of the area in
which the land is situated.
(2) Subsection (1) does not limit or affect the operation of the
Planning and Development Act 2005 in any way, and the subsection may
be overridden by a provision of a planning scheme or interim development
order.
21Z. False or misleading
information
(1) A person must not do any of the things set out in
subsection (2) —
(a) in relation to an application under this Part; or
(b) in relation to the compliance, or purported compliance, with a
requirement under section 21E(1) to give the CEO a document or
information.
Penalty: a fine of $24 000 or imprisonment for
2 years.
(2) The things to which subsection (1) applies are —
(a) making a statement which the person knows is false or misleading in a
material particular; or
(b) making a statement which is false or misleading in a material
particular, with reckless disregard as to whether or not the statement is false
or misleading in a material particular; or
(c) providing, or causing to be provided, information that the person
knows is false or misleading in a material particular; or
(d) providing, or causing to be provided, information that is false or
misleading in a material particular, with reckless disregard as to whether the
information is false or misleading in a material particular.
21ZA. Offences in relation to determination
under section 21M
(1) Where under section 21M a person is required to give any
information, answer any question, or produce any document or thing and that
person, without reasonable excuse (proof of which lies on the
person) —
(a) fails to give that information or answer that question at or within
the time specified in the requirement; or
(b) gives any information or answer that is false in any particular;
or
(c) fails to produce that document or thing at or within the time
specified in the requirement,
the person commits an offence.
Penalty: a fine of $24 000 or imprisonment for
2 years.
(2) It is a defence in any proceeding for an offence under
subsection (1)(a) or (c) for the accused to show —
(a) that, in the case of an alleged offence arising out of a requirement
made orally under section 21M, the CEO did not, when making the
requirement, inform the accused that he or she was required under this Act to
give the information or answer the question, as the case may be; or
(b) that, in the case of an alleged offence arising out of a requirement
made by notice in writing under section 21M, the notice did not state that
he or she was required under this Act to give the information, answer the
question, or produce the document or thing, as the case may be; or
(c) that the time specified in the requirement did not afford the accused
sufficient notice to enable him or her to comply with the requirement;
or
(d) that, in any case, the CEO did not, before making the requirement,
have reasonable grounds to believe that compliance with the requirement would
assist the CEO in making the determination.
21ZB. Incriminating information, questions
or documents
An individual is not excused from complying with a requirement under
section 21M on the ground that the answer to a question or the production
of a document or other thing might incriminate the individual or render the
individual liable to a penalty, but neither —
(a) an answer given by the individual that was given to comply with the
requirement; nor
(b) the fact that a document or other thing produced by the individual to
comply with the requirement was produced,
is admissible in evidence in any civil or criminal proceedings against
the individual other than proceedings for an offence against
section 21ZA(1)(b).
21ZC. Obstruction of police
officer
(1) A person must not prevent or attempt to prevent —
(a) a police officer from entering premises under section 21V(1);
or
(b) otherwise obstruct or impede a police officer in the exercise of his
or her powers under section 21V(1).
(2) If required under section 21V(2) by a police officer to give the
officer his or her name and address or provide proof of his or her identity, a
person must not fail to give the officer his or her name and address or provide
proof of his or her identity.
Penalty: a fine of $24 000 or imprisonment for
2 years.
21ZD. CEO to be notified of certain
matters
(1) An operator of a sexual service business must give the CEO notice in
writing of any notifiable matter within 7 days after becoming aware of the
matter.
Penalty: a fine of $24 000 or imprisonment for
2 years.
(2) In subsection (1) —
notifiable matter means —
(a) a charge of the commission of an offence under this Act being made
against —
(i) an operator or a manager of the business; or
(ii) if a proprietary company is an operator of the business, the company
or any officer of the company;
or
(b) a charge of the commission of an indictable offence being made
against —
(i) an operator or a manager of the business; or
(ii) if a proprietary company is an operator of the business, the company
or any officer of the company;
or
(c) if a proprietary company is an operator of the business, a person
ceasing to be an officer of the company or a person, not already an officer of
the company, becoming an officer of the company; or
(d) a change in the name or address of any other person with whom the
operator operates a sexual service business; or
(e) the name and address of any other person with whom the operator begins
to operate a sexual service business; or
(f) a change in the location of the place at or from which the
operator’s sexual service business is being carried on; or
(g) the name and address of any person who exercises or exerts, or is in a
position to exercise or exert, control or substantial influence over the manner
in which the operator’s sexual service business is conducted.
”.
21. Section 26
amended
Section 26(1) is amended by deleting “business involving the
provision of prostitution” and inserting instead —
“ sexual service business ”.
22. Section 56 amended
Section 56(1) is amended as follows:
(a) by inserting after “done as” —
“ the CEO or ”;
(b) by inserting after “when assisting” —
“ the CEO or ”.
23. Section 57 amended
Section 57(4) is amended by deleting the full stop after
paragraph (c) and inserting instead —
“
;
(d) the CEO (who is the administrative head) and persons
employed in the Department.
”.
24. Section 58
amended
Section 58(4) is amended as follows:
(a) in paragraph (a) by inserting before “a police
officer” —
“ the CEO or ”;
(b) in paragraph (b) by inserting after “administration
of” —
“ Part 3A of this Act or ”.
25. Sections 59A and 60
inserted
After section 59 the following sections are inserted —
“
59A. Liability of operator for offence by
manager
If a person who holds a manager’s certificate commits an offence
under this Act as the holder of that certificate, a person who has an
operator’s certificate for the sexual service business concerned is to be
treated as having committed an offence and is liable to the penalty prescribed
for the offence committed by the person who holds the manager’s
certificate.
(1) The Minister administering the Health Legislation Administration
Act 1984 is to carry out a review of the operation and effectiveness of
this Act as soon as is practicable after the expiration of 2 years from the
commencement of the Prostitution Amendment Act 2008
section 3.
(2) The Minister is to prepare a report based on the review made under
subsection (1) and as soon as is practicable after the preparation of the
report, cause it to be laid before each House of Parliament.
”.
After Schedule 1 the following Schedule is inserted —
“
Schedule 2 — Offences
relevant to granting a certificate
[s. 21G(1)(d) and (e)]
An offence under any of the following enactments:
Censorship Act 1996
s. 60
Child Welfare Act 1947
s. 108(1)
Children and Community Services Act 2004
s. 192(1) or (2)
Classification (Publications, Films and Computer Games) Enforcement
Act 1996
s. 60
The Criminal Code
s. 181
s. 186
s. 187
s. 204A or 204B
s. 278 or 279
s. 281A
s. 320(2) or (3)
s. 321(2) or (3)
s. 321A(3)
s. 324, 325 or 326
s. 327
s. 329
s. 330(2) or (3)
s. 331B, 331C or 331D
s. 332
s. 343
s. 396, 397 or 398
”.
27. Various references to prostitute
changed to sex worker
In each place listed in the Table to this section
“prostitute” is deleted and the following is inserted
instead —
“ sex worker ”.
Table
|
s. 5(1) |
s. 10(1)(a) |
s. 19(2)(b)(i) |
|
s. 5(2) |
s. 14 |
s. 19(2)(b)(ii) |
|
s. 5(4) |
s. 15 |
s. 19(3)(b) |
|
s. 5(4)(a) |
s. 16(1) |
s. 19(3)(c) |
|
s. 5(4)(b)(i) |
s. 16(2) |
s. 20(1) |
|
s. 5(4)(b)(ii) |
s. 17(1) |
s. 20(2) |
|
s. 5(5)(b) |
s. 18(1) |
s. 50 |
|
s. 5(5)(c) |
s. 19(1) |
|
|
s. 6(4)(a) |
s. 19(2) |
|
|
s. 9(a) |
s. 19(2)(a) |
|
28. Various references to
prostitute’s changed to sex worker’s
In each place listed in the Table to this section
“prostitute’s” is deleted and the following is inserted
instead —
“ sex worker’s ”.
Table
|
s. 6(1) |
s. 6(3)(a) |
s. 6(4)(c) |
|
s. 6(2)(a) |
s. 6(3)(b)(i) |
|
|
s. 6(3) |
s. 6(3)(b)(ii) |
|
”.