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Prostitution

08 Sep 2016 - 11:44 | Version 8 |

Contributed by JonathonHunyor and current to 1 May 2016

The Prostitution Regulation Act (PRA), which came into force on 8 May 1992, regulates prostitution in the NT.

The PRA distinguishes between escort agencies, which arrange for prostitution services to be provided at another location, and brothels, which are premises used for the purpose of prostitution. The PRA legalises licensed escort agencies and makes brothels illegal.

Prostitution is the provision of sexual services by one person to another, regardless of gender, in return for payment or reward to any person. The PRA makes prostitution legal where:
  • the services are arranged through an escort agency, both the operator and manager of the escort agency must be licensed, the person providing the sexual service is certified and the sexual service is provided on premises not occupied by the escort agency
  • the provision of the prostitution services is arranged by the individual working alone (solo worker), so long as any prostitution services are not arranged from the premises at which the sexual services are to be provided.
The PRA was introduced following the Mullholland Inquiry. The inquiry criticised the informal arrangement that saw prospective escort agencies vetted by the police Bureau of Criminal Intelligence. Legislators envisaged a similar situation, but with a Board rather than police determining the suitability of prospective escort agencies. However, the legalisation of prostitution has seen many sex workers choose to work solo, so the number of escort agencies has steadily declined.

In 1998 a review was conducted into the first five years of the PRA's operation. The review concluded that the following objectives of the PRA had been met:
  • to provide a legislative basis for police to issue certificates in respect of sex workers who work for an escort agency, and respond to alleged breaches of the PRA as they would for any other alleged offence
  • to avoid any potential infiltration of the industry by organised crime
  • to ensure that there is no exploitation within the industry, particularly with regard to juveniles.
In 2000 the Escort Agency Licensing Board was abolished and its powers transferred to the Northern Territory Licensing Commission (the Commission). In January 2015, the Commission was abolished and its powers transferred to the Director-General of Licensing (Director-General).

Certification and solo workers

Solo workers do not need to be certified or licensed to work, but are subject to the same laws and requirements governing other businesses (see Businesses structured for profit ). The PRA does, however, contain some provisions relevant to solo workers. For example it creates offences that affect solo workers, such as soliciting (offering to provide prostitution services in return for money or some other reward) and prostituting when under 18 years of age, and regulates advertising.

Escort agencies and licences

Only licensed escort agencies are legal. Escort agencies are regulated according to a strict licensing system. Operators and managers and their business associates, and corporate bodies who own escort agencies, must be licensed [PRA ss6, 7].

Licence applications are made to the Director-General [PRA s25]. The Director-General hears and determines applications and other licensing matters.

Annual licence fees are set by the Prostitution Regulations: see reg 5As at March 2016, the fees are $529 for an individual or $1,322 for a body corporate, plus $013 or $132 respectively for every additional business name used by the agency.

An applicant must be both eligible and suitable for a licence. An applicant is eligible if they are over 18 years of age, a resident in the NT, free of convictions for serious drug offences within the preceding ten years, and free of specified sexual and prostitution-related offences [PRA s24]. Serious drug offences include the following breaches of the Misuse of Drugs Act:
  • supplying dangerous drugs [s5]
  • receiving or possessing property directly or indirectly as a result of the supplying of dangerous drugs [s6(1)(2)]
  • cultivating a prohibited plant [s7]
  • manufacturing or producing a dangerous drug [s8]
  • possession of dangerous drugs [s9]
  • theft of dangerous drugs [s11].
In addition, associates, whether spouse, de facto partner, homosexual partner or business associate, must have also remained free of convictions for the above offences during the preceding ten years [PRA s24(1)(d)(e)].

Where the applicant is a body corporate, each officer must meet the above criteria [PRA s24(2)(b)].

If an applicant meets the eligibility criteria for a licence, the Director-General looks to their character to determine whether they are suitable to work in the industry as an operator or manager. Copies of all applications are forwarded to the police who, after conducting inquiries, report to the Director-General [PRA s27].

The Director-General has a broad discretion in determining an applicant's suitability for a licence [PRA s28]. There is a right to reasons for a decision in relation to the grant of a license [Northern Territory Civil and Administrative Tribunal Act s34(2) (NTCAT Act)]. If a licence is refused, an applicant may appeal to the Northern Territory Civil and Administrative Tribunal [PRA s47E] (see Appeals below).

The Director-General also has an unlimited discretion to impose conditions or restrictions on a licence [PRA s29]. The standard conditions under which a licence is granted require the operator to:
  • take all reasonable steps to ensure only safe sex services are provided
  • not expressly or implicitly discourage the use of condoms and other prophylactics
  • provide each sex worker with a written statement setting out the terms and conditions under which the worker is to provide prostitution services as arranged by the operator, including rates of remuneration, details of all charges levied on the worker, and whether the operator is paying PAYE tax, superannuation levy or work health insurance.
A licence is issued for one year in duration [PRA s30(4)].

If a licensee fails to comply with the conditions of their licence, the Director-General may cancel, revoke or suspend the licence or its conditions at any time [PRA s32].

Although there is no formal complaints mechanism, the Director-General has the power to request investigation by the Police Force of complaints relating to the operation or management of any escort agency business [PRA s22(1)(d)].


Certificates for prostitutes

Those providing sexual services for an escort agency need to be certified to have not been found guilty of a violent offence or a relevant drug offence in the preceding 10 years (PRA s9: it is otherwise an offence for a licensee to arrange for that person to provide prostitution services, s9(4)). Solo workers do not need to be certified.

A certificate is issued by police and states that the person named in it has not been convicted of a disqualifying offence. A disqualifying offence includes any offence involving the use or the threat of violence against another person and the following breaches of the Misuse of Drugs Act:
  • supplying dangerous drugs (s5)
  • receiving or possessing property directly or indirectly as a result of the supplying of dangerous drugs (s6(1)(2))
  • cultivating a prohibited plant (s7)
  • manufacturing or producing a dangerous drug (s8)
  • possession of dangerous drugs (s9)
  • theft of dangerous drugs (s11).
An application form is available from the Department of Business and must be lodged, together with a statutory declaration from each worker, by the agency operator with the Commissioner of Police. Before granting a certificate, police check an applicant's criminal record for any disqualifying convictions recorded within Australia over the last ten years, including convictions under laws that have since been repealed and for crimes punishable by imprisonment of five years of more. Once issued, a certificate can be cancelled if a sex worker is subsequently found guilty of a disqualifying offence.

The police have no discretion in issuing certificates, but if a certificate is refused, the applicant may appeal (PRA s47E(1) and Schedule) (see Appeals below).

Appeals

Appeals against reviewable decisions under the PRA are heard and determined by the Northern Territory Civil and Administrative Tribunal ('the Tribunal', see PRA s3).

An 'affected person' (an individual, licensee or the Minister, see PRA s47D and Schedule) may appeal decision of the Director-General to:
  • grant or renew a licence
  • refuse to grant or renew a licence
  • impose conditions or restrictions on a licence
  • cancel or suspend a licence (other than the cancellation of an escort agency manager's licence where the escort agency operator's licence has been cancelled)
  • remove or vary a restriction or condition of a licence made in relation to a licence.
An individual may appeal a decision made by the Commissioner of Police to cancel or refuse to issue a certificate on the grounds that:
  • they have not been convicted of any of the disqualifying offences specified in the notice of cancellation or in the notice refusing to issue the certificate
  • there are adequate grounds for disregarding the disqualifying offence, such as the disqualifying offence was committed many years before and was of a trivial nature. Certain juvenile records should be destroyed after five years (see Young people and crime ).
Appeals must be in writing and generally lodged with the Tribunal no later than 28 days after receiving written notice of the relevant decision [NTCAT Act s94]. For the powers of the Tribunal on review see s50 NTCAT Act.

If dissatisfied with a decision made by the tribunal, a person may appeal to the Supreme Court, but only on a question of law [NTCAT Act s141]. An appeal to the Supreme Court must be within 28 days of the Tribunal's decision.

Health issues

Section 20 of the PRA makes it illegal for a licensee to use the fact that a prostitute has been medically examined to induce a client to believe that prostitute is not infected with a sexually transmitted disease. This carries a fine of 17 penalty units ($2,601 as at March 2016). A medical check cannot conclusively ascertain whether a person is infected with a number of sexually transmitted diseases, including HIV, and operators are expected to always promote the use of safe sex practices.

It is also a standard condition of all licences that where an operator is aware a worker is infected with HIV or any other blood borne pathogen (such as Hepatitis B or C), the operator must make sure that any client engaging the services of that worker is informed of that fact.

Powers of police

A member of the police force who is a sergeant or an officer of higher rank or who has written authorisation from the Commissioner of Police may, at any time, enter premises reported to be, or reasonably believed to be, a brothel or licensed as an escort agency to ascertain whether the PRA is being complied with, whether the conditions or restrictions of the licence are being observed or to investigate a complaint on the request of the Commission (PRA s52).

The penalty for obstructing, hindering or perverting police entry in these circumstances is 40 penalty units ($6,120 as at March 2016) or imprisonment for two years (PRA s52(5)). Entry to premises for these purposes must be reported to the Director-General by the Commissioner of Police within 48 hours (PRA s52(6)).

The Director-General must report annually to the Minister on the operation of the PRA and on the participation of police in administering and enforcing it [PRA s53(1)]. At the end of every five years the Minister must report to the Parliament on the operation of the PRA during that period (PRA s53(2)).

Advertising prostitution services

Advertising prostitution services is strictly regulated: see PRA s19. Advertisements in newspapers have to comply with strict rules governing content, format and location. It is against the law to advertise a job vacancy for work as a prostitute [PRA s19(3)].

Offences

Offences defined by the PRA include:
  • Keeping or managing a brothel (s4).
  • Operating or managing an escort agency without a licence (s6).
  • An operator or manager of an escort agency arranging for an uncertified worker to provide prostitution services (s9(4)).
  • Soliciting, inviting a person to solicit in a public place or loitering for the purpose of soliciting or inviting a person to solicit in a public place (s10).
  • Unlawfully inducing or forcing a person to enter or remain in prostitution (s11).
  • Unlawfully inducing or forcing a prostitute to provide financial support from money derived from prostitution (s12).
  • Causing or inducing a person under 14 years of age to take part in prostitution (s13).
  • A manager or operator of an escort agency or a person having the care or control of a person under the age of 14, allowing them to take part in the provision of prostitution services (s14).
  • Receiving money known to be derived from the prostitution of a person under 14 years (s15).
  • Making a false or misleading statement in an application for the grant or renewal of an escort agency licence (s26).
  • Offering or agreeing to a person under 18 years providing prostitution services (s16).
  • Offering or providing prostitution services by an infant (s17).

Sexual servitude

In 2002 the Criminal Code Act was amended to protect sex workers from the use of force or threats that effectively deny them the freedom to stop providing sexual services or to leave the place where the services are being provided. This condition is called sexual servitude. The force or threats need not be against the sex worker but may be against another person, such as the sex worker's child.

It is now an offence to cause someone to enter into or remain in sexual servitude or to conduct a business that involves the sexual servitude of others. Sexual services are defined as 'the commercial use or display of the body of the person providing the services for the sexual gratification of others (CCA s202A(1)). This makes it broad enough to cover other sex work, such as erotic dancing and pornography, and not just prostitution.

The question of whether a person is in sexual servitude is determined according to whether a reasonable adult would consider in the circumstances that the person is not free to stop providing the services or to leave the place or area (CCA s202A(2)).

The maximum penalty for sexual servitude offences against an adult is 15 years imprisonment, 20 years if a child 12 years of age or over is involved, and life imprisonment if a child under the age of 12 (CCA s202B) is involved. The same penalties apply to any person who runs the business involved in the commission of these offences. This includes any person who takes part in, exercises control or direction over, or provides finance to the business (CCA s202C).

Deceiving a person into prostitution

It is also an offence to deceive another person about the fact that they are being recruited for sexual services, for example, where a person is told they will be employed as a waitress when the employer really intends for them to work as a prostitute. The deceptive conduct offence has a maximum penalty of 10 years, unless the person deceived is a child (of or over 12 years of age), in which case the offender is liable to imprisonment for 15 years (CCA s202D). That the offender didn't know that the person was a child or that they believed that the person was an adult or a child of a different age is irrelevant (CCA s202E).

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