Why Can’t We Have Uniform Sex Work Laws?

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Note 1*

Hi all,

This issue has come up recently, when I have been asked “WHY DO WE HAVE TO UNDERSTAND SO MANY DIFFERENT LAWS?”

This may have been spurred on by me doing blogs which explain the different laws around the country. It could also be because many girls are touring right now and need to understand the laws of each of the states in order to work.

The reason why we cannot have uniform sex laws is quite a difficult thing to explain but I will do my best because it is really hot topic. I’m going to try and explain it in the simplest way possible but if you are a lawyer and you have knowledge of the laws, feel free to post comments which expand on what I am saying.

Our Constitution

Back in 1901, when we became a Federation, we had the States and Territories reluctant to become a Federation (ie. have a government which deals with the country as a whole). The reason why we became a Federation has been written about extensively and it really is quite convoluted. Basically, there was so much trade going on between the States and Territories that there had to be some form of uniform rules about the way States and Territories transacted (note: that is an extraordinarily basic explanation and I apologise to all of the Constitutional lawyers who I have offended by talking about it in such a simplistic way).

Here is our Constitution —> http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution

Now, if you go to and click on “Part V – Powers of the Government”, you will be directed to Section 51 of the Constitution. Section 51 is an important clause because it basically says “alright, Federal Government, if you want to exist then you are limited to be involved in only THESE issues and these issues only.” So, Section 51 lists I think 36 “heads of power” that the Federal Government can deal with. Whatever doesn’t come under those “heads of power”, its left for the States to deal with.

If you read the list of Section 51, you will see that “sex work” or “prostitution” is not a “head of power”.

So, the Federal Government cannot make laws with respect to “sex work” or “prostitution”.

The only power that they have is to deal with crimes relating to human trafficking because it is an international or cross-border issue. That’s where the Australian Federal Police get their powers to deal with that aspect of “sex work”.

The Many Aspects of Sex Work from a State Perspective

It is extraordinarily hard to piece together all of the State legislation that applies to “sex work”. I’ll list the many different state laws that come into play when we talk about sex work:

1) council regulations

2) public health and safety

3) crime

4) licensing

5) “prostitution”

6) advertising

7) employment

8) discrimination

This means that a sex worker has a whole raft of legislation that needs to be taken into account when working. There is simply no way that we can pull all of these laws and make some form of “sex work umbrella” – or at the very least, I have not worked out a way to do it. I have looked at all of the Scarlet Alliance submissions here —> http://www.scarletalliance.org.au/laws/ and I am afraid even Scarlet Alliance hasn’t yet taken on the battle to unify sex worker laws throughout the country.

What Do We Do?

1.We magically change the Constitution to include sex work as a head of power. Chances of that happening? Nil. We cannot even get our Indigenous people recognised in the Constitution let alone sex workers.

2. We continue to push State governments to move AWAY from criminalisation and move to decriminalisation. We NEED to fight for this, especially in South Australia.

3. If that doesn’t work, we need to oppose the legislation of sex work and ideally use (at the very least) New South Wales as an example of how sex work should be dealt with legislatively – which is basically “not at all” except for crime.

4. Failing that, we need to lobby State Governments to make consist laws throughout the country so that sex workers can transact across the borders without fear of breaking the law or breaching regulations. Currently, we have extraordinarily different laws (especially Victoria and Queensland which are both so completely different from one another). We should lobby these Governments to at least be consistent with the legislation so that sex workers do not spend the rest of their lives concerned about breaking laws. This is even more of a problem now that sex workers are advertising on global platforms like the internet and social media where there are not borders and people from different states read websites and do not understand the differences between services that can be offered in one state and not the other.

5. Failing that, sex workers need to become more educated when it comes to the different legislation. Scarlet Alliance very recently had a law conference to educate themselves about the law. This education I hope will widen and I will do my best to continue to inform sex workers about their legal obligations while lobbying the State Government for some kind of change to laws to make them more consistent.

That is the end of my rant.

Thank you for reading.

KVA

@KVALEGAL

* Note 1: Image: http://iserotope.com/sad-day-two-kindles-damaged-now-what/

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