Submission for Consultation Paper (WP 80)
My submission for the decriminalisation of sex work in Queensland
This submission is nothing special - in fact it’s tedious and long (as most submissions are). I’m posting it here to demonstrate my work but I would not recommend reading it. This submission is mostly a copy-paste job of the submission kit provided by Scarlet Alliance, where they have done most of the advocacy legwork, and whom I just echo their recommendations. I personalised the submission with supporting anecdotal information. You can read what questions this submission is in response to here.
To whom it may concern,
I am writing in regard to your call for submissions for the Consultation Paper (WP 80). I note that there are two dates provided for submission deadlines 03/06/22 and 06/06/22 and I have attached a screenshot to demonstrate this. I wrote my submission with the 06/06/22 deadline in mind, and I hope you have an opportunity to consider my submission.
My name is Estelle Lucas, I’m a 31-year-old non-binary Muslim sex worker who has worked in the sex industry since I was 18. My family immigrated to Australia from Turkey and I grew up in a low-socioeconomic area in Melbourne. I have worked as a sex worker all around the world (including in every state of Australia), under varying legal frameworks, either as a private escort or working for an escort agency.
I am also the founder of Red Files Inc (redfiles.org.au), Australia’s largest violence prevention and health promotion charity for sex workers. I was commissioned by the Michael Kirby Centre for Public Health and Human Rights to assist in consultation for the recommendations for the decriminalisation of sex work in Victoria. As a result, the director insisted I return to higher education and I am now in the process of completing my Masters of Public Health. This year I was also awarded the 2022 Kenneth Myer Innovation Fellowship.
I have a vast lived experience both as a sex worker, which I can draw upon, but I also have professional expertise and insights into public health, technology, policy, and legal frameworks pertaining to the regulation of sex work.
As you will already be aware, the outcome of Queensland’s current legal framework for the regulation of sex work is evidenced as impracticable and ineffective, at best.
My submission will address all your questions.
In regard to Q1, I have highlighted some of the features and benefits of decriminalisation.
- Decriminalisation follows a growing body of evidence that demonstrates this legal framework is best suited for furthering the public health outcomes, protecting sex workers from risk, and addressing the human rights violations of sex workers.
- Decriminalisation is the only framework that does contribute to the inequities of sex work. It does not further stigma toward sex workers. It does not enhance a sex worker’s vulnerabilities in the workplace, nor does it justify human rights violations against sex workers as part of the administration of its framework.
- Decriminalisation is a human-rights framework that permits sex workers to actualise and experience their inherent human rights as per all relevant and ratified treaties from the United Nations.
- Decriminalisation distinguishes sexual exploitation and trafficking from sex work thereby enabling the accurate identification of exploitation and trafficking.
- Decriminalisation protects sex workers from workplace health and safety risks and allows a pathway for sex workers to report abuse from clients or workplace staff.
- Decriminalisation makes possible data collection to better inform the development of evidence-informed public policy.
A fully decriminalised sex work framework must:
- recognise sex work as work
- enhance the human rights and workplace health and safety of sex workers
- reduce stigma and provide for discrimination protections for sex workers
- allow sex workers to work together and in collectives, and employ support staff
- protect sex workers and businesses to enable them to operate in accordance with the laws of the State and the Commonwealth as they apply to all individuals and businesses generally, including laws governing employment, workplace health and safety guidelines, workers compensation and rehabilitation, planning and discrimination.
A fully decriminalised sex work framework must also repeal all current laws that refer specifically to sex work in Queensland so that existing general laws can be utilised.
In regard to Q2 it is helpful to study the structure and outcomes of other decriminalisation models.
My personal interaction with the current sex work legislative framework of Queensland meant that I couldn’t legally work with my partner, who I relied on as a safety net. This meant that when I worked in Queensland, I did so with no physical support. Given the stigma, I would not have felt safe or comfortable seeking support or services with anyone else. This increased my vulnerability and hampered my ability to mitigate risk in the workplace.
It also meant that I was unable to advertise my services accurately, as it could attract the attention of the police. I was forced to reveal my services only when a client arrived in my hotel room. This left me vulnerable to potential abuse, violence, and manipulation – whereas I would have safely negotiated my services through a mobile phone, as I do in other states.
The new framework wouldn’t put me in the above position anymore. A decriminalised framework is characterised by not having any licensing, criminal laws or police powers that specifically refer to sex work or commercial sexual activity. For planning purposes, private/co-op sex work in residential areas would be permitted as ‘Material Change of Use’. Massage parlours and brothels in Centre and Mixed Zones would be permitted under ‘Declared Use’. All would have to be compliant with mandatory amenity impact, Fair Trading, building alteration and other regulations; the same as everyone else in that zone
In regard to Q3, for a decriminalised framework to be considered, the current laws that refer specifically to sex work, in particular the Prostitution Act and Regulations, Criminal Code Ch22A and sections of the Police Powers and Responsibilities Act would need to be removed. It is these laws that forced me into the above scenarios. It will also be necessary to dissolve the PLA and the Prostitution Enforcement Task Force of the Queensland Police Service (PETF) as the police are not appropriate regulators of the sex industry. A growing body of evidence suggests that when police are regulators of sex workers, they tend to abuse their authority. This is why sex workers choose to work illegally because the police are worse than anything else the industry has to offer.
In regards to Q4, the new framework should apply to all sex workers and sex work business types. However, as part of this, the current definitions to describe the sex industry or sex workers are not reflective of reality and use stigmatising language. A key feature of decriminalisation is addressing the stigma which contributes to the abuse sex workers experience. The new language should be inclusive of sex workers who do contact and non-contact sex work such as: erotic dance/stripping, erotic massage, full service sex work, bdsm, sex for favours, online and in person services. It should also include sex workers who work independently, co-operatively, do incall/outcall, street/bar-based work or work in massage parlours, with escort agencies, in brothels and online.
For me to interact with the new framework, I need to be captured in the definitions when I engage with different forms of sex work. In Queensland I have previously engaged in online sex work, incall/outcall sex work, massage and working with a doubles partner.
In regard to Q5, no offenses in the Prostitution Act or the Criminal Code that refer to sex work should be maintained or reformulated in other parts of the Criminal Code or another law.
Exploitation and trafficking are not unique to the sex industry and terminology needs to consider sex worker to be distinct from exploitation and trafficking. Australia is party to the UN Trafficking Protocol and Convention on the Elimination of Discrimination Against Women and federal laws already address exploitation and trafficking as part of their obligation to these conventions. Any attempt to diverge from these obligations will only serve to complicate matters.
It is also important to remember that sex workers are best positions to spot exploitation or trafficking in the workplace, and enabling them to mobilise and address this issue is one of the benefits of decriminalisation.
In regard to Q6-15, licensing is not decriminalisation. Any form of licensing or certification is unnecessary, it creates a resource and administrative burden on the industry and government and has measurable or evidenced benefits. Licensing has already been tried in Queensland and it created a two-tiered industry in Queensland where the majority of the sex industry and sex workers are locked out of the legitimate system with no rights and at risk of police prosecution and charges. There will be no role for a licensing authority in Queensland, as has been the case in NSW (for almost three decades), and will be the case in Victoria as it implements the Sex Work Decriminalisation Act 2022.
My personal experience with licensing in Victoria meant that mail that identified me as a sex worker was sent to my family home (as I was 18). My mother opened my mail, but fortunately she did not know how to read English. Was she able to, the government would have outed me to my family, and exposed me to the cultural repercussions that come with being Turkish Muslim.
In regard to Q16, it’s important to remember that enhancing vulnerabilities and stigma is one of the greatest risk factors for exploitation or any other illegal activity. Decriminalisation, when not hindered by additional laws that undermine its effectiveness, will deter illegal activity by virtue of addressing vulnerabilities and stigma. By making the industry more transparent sex workers can exercise their workplace rights and report issues to the appropriate regulator.
In regard to Q18-22, evidence and experience in other jurisdictions demonstrates that Queensland WHS guidelines for the decriminalised industry, encompassing advice about universal workplace laws, would be best developed by Respect Inc, and other sex worker collectives, in partnership with WorkSafe QLD, relevant unions, the Local Government Association of Queensland (LGAQ) and the Office of Industrial Relations Queensland. Queensland production and implementation of realistic, accurate and viable sex industry WHS guidelines, including explanation of workplace laws, will need to be funded adequately and in at least four languages. Health promotion of this nature requires multiple methods: short explanatory videos, pictorial diagrams, on-site support, workshops, one-on-one peer education advice, extensive documentation and possibly economic support. An evaluation of implementation and compliance should be conducted, in four languages, to determine required alterations and future resourcing after five years.
This submission can consider working in partnership with Red Files Inc., which is the largest platform hosting sex workers in Australia. Health promotion information can be delivered through this hub as it has been previously – with over 30,000 documents sent to 1000 sex workers.
In regard to Q23-24, criminal laws to mandate sexual health testing, use of condoms or working with an STI are ineffective and expensive. It also violates sex workers human rights. Data on sex work demonstrate low rates of STIs, high rates of condom use, high rates of sexual health testing, and peer education and health promotion are a more effective way to ensure all of this instead of criminal laws. Currently the police engage in entrapment, posing as clients to try to get sex workers to agree to providing services without condoms. The cost of this policing and excessive testing is exorbitant compared with the cost of peer education. A better system is for criminal laws to be removed and the focus shifted to peer education, improving access to testing and enabling sex workers to make informed decisions about best-practice safe work practices and testing.
In regard to Q25-37, private and co-op sex work in residential areas should be permitted as ‘Material Change of Use’, massage parlours and brothels in Centre and Mixed Zones should be permitted under ‘Declared Use’, all covered by existing mandatory amenity impact rules. Councils must be prohibited from categorising sex work locations as ‘assessable’, and as such should not be able to prohibit or make arbitrary rules designed to exclude some sex workers from decriminalisation. Currently, private and co-op workplaces in Residential Zones make up 60% of the sex industry in Queensland, and massage parlour workplaces in Centre and Mixed Zones represent about 10%. They fit inconspicuously into their zones. Police should have no rights to enter, question or arrest people on the basis of sex work-specific laws and powers. ‘Material Change of Use’ regulations that currently cover the privacy of DV shelters should provide added confidentiality protection for sex workers in private and co-op workplaces in residential areas
In regard to Q38-41, sex industry businesses and sex workers do not require additional rules or criminal punishments for advertising our services. We need to be able to describe our services, including using the term ‘massage’. Existing advertising codes already regulate sexualised content in marketing to children. Decriminalisation does not include special advertising restrictions just for sex workers that don’t apply to other businesses. The Australian framework of advertising self-regulation should be the only restrictions to which sex work businesses are subject.
In my personal experience, I have found it ironic that I could not advertise with an image of a champagne bottle when there are countless ads for alcohol products everywhere in Queensland.
In regard to Q42-46, decriminalisation benefits should apply to street-based sex workers by repealing the sections of the laws that criminalise public soliciting and loitering charges, as well as police powers of entrapment and move-on notices. There is a low-to-no public amenity/nuisance impact, with only six public soliciting offences in the last five years. The scale in Queensland is not comparable to New South Wales, Victoria or New Zealand, and move-on laws are not warranted where there is no evidence of a significant problem with street-based sex work of less than 2%. Public soliciting charges and move-on notices based on a police officer’s suspicions that, because of a person’s behaviour, the person is soliciting for sex work, criminalise the most vulnerable sex workers. A decriminalisation Bill should protect against local government regulations being developed that override the intention of decriminalisation. Freedom of movement restrictions breach human rights laws.
A decriminalisation model that benefits only ‘some’ sex workers will only further exacerbate inequalities.
In regard to Q47-48, there is a need to review the new framework no sooner than five years after implementation. While evaluation is important, you must understand that due to the stigma and historical treatment of sex workers, it will take longer than hoped for sex workers to fully interact with the new framework. Sex workers must be given time to adjust to the new setting and time must be allocated to repair, heal and build the relationship between sex workers and institutions that previously punished them. The focus of the review should be the success or challenges of WHS health promotion.
It is worth mentioning as Red Files Inc., operates exclusively online, all operations can be tracked through analytics and this may help in gathering data about health promotion outcomes. In addition, Respect Inc should be funded to design the review in partnership with WorkSafe, sex workers should collect the data and the analysis should be led by a partnership of sex worker organisations.
In regard to Q49, Decriminalisation is an important first step to achieving improved workplace health, safety and rights for sex workers. It must be twinned with anti-discrimination protection if sex workers are to be protected and have an avenue to address discrimination and for the necessary culture change that underpins discrimination and stigma to shift. The Anti-Discrimination Act needs to be amended by:
- replacing the ‘lawful sexual activity’ attribute with the new attributes of ’sex work’ and ‘sex worker’;
- repealing exceptions to the Act that make accommodation and working with children discrimination against sex workers lawful;
- making changes to the complaints process to address significant barriers to reporting discrimination for sex workers;
- incorporating a change to enable a representative organisation like Respect Inc to make a complaint on behalf of a sex worker; and
- including ‘sex work’ and ‘sex worker’ as a recognised 'ground' for unlawful and criminal vilification under sections 124A and 131A.
If Queensland was truly interested in strengthening reporting pathways for sex workers, consideration can be given to funding organisations like Red Files Inc. which hosts the largest number of sex workers online (and is currently unfunded).
In regard to Q50-52, funding to sex workers organisations will be greatly assist in actualising the aims of decriminalisation. This includes Respect Inc to produce to produce or lead the following:
(a) education and training, including:
● i. public education and awareness programs to address stigma and educate the community about sex workers;
● ii. peer education, information and training for sex workers and sex work business operators on their rights and obligations; and
● iii. sensitivity education and training programs for officials and organisations who deal with sex workers.
(b) steps to build positive relationships between sex workers, police and other authorities;
(c) continuing peer support and outreach services by Respect Inc for sex workers on health and other matters.
All of these programs and resources should be translated to allow equitable and effective access by all sex workers. It is also essential that Respect Inc is resourced to develop a communication strategy to support effective implementation of decriminalisation, ensuring sex workers and a wide range of sex industry businesses are aware of their changing rights and responsibilities.
In addition, Red Files Inc., is a great access point for delivering health promotion and violence prevention material online. It may be worth considering funding Red Files Inc., in conjunction with Respect Inc. to maximise efforts and aims.
In regard to Q53-55, Queensland’s criminal laws are not adequate to deal with stealthing or circumstances where there is a fraudulent promise by a person to pay money to a sex worker in exchange for a sexual act. Section 348(2)(e) ‘by false and fraudulent representations about the nature or purpose of the act;’ should be amended to include ‘or the withdrawal of payment or non-payment of a sex worker’. In our January 2021 submission to the Legal Affairs and Safety Committee and our April 2022 submission to the Women's Justice and Safety Taskforce we argued that on-payment or stealthing (covert removal of a condom) should be considered rape not fraud.
In my personal experience, I have had clients attempt to fraudulently pay me. They did this by saying they had no cash on them but that they were happy to transfer money. After transfer, they expected me to move forward with my service, but because of my many years of experience, I am not so easily fooled. Later, by convening with sex workers, I was able to determine those clients had fraudulently paid sex working friends, by reversing the transaction upon completion of service. To say this is not rape is to suggest consent is irrelevant when determining rape. My sex working friends experienced the trauma of rape as a result, and consent should not be determined as given by virtue of being a sex worker. This undermines the dignity, worth and autonomy of sex workers as humans. Consent should be readily given, and one should have the right to retract consent during intercourse. I implore you to make fraudulent payment an act of rape, as these perpetrators operate with impunity. They are aware that they are legally protected, and they make a mockery of the rights of women and the criminal justice system.
I have also experienced clients attempting to stealth me countless times. Again, due to my vast experience, I am always able to detect this before it occurs, but you cannot rely on sex workers having 13 years experience to protect them from stealthing. Stealthing should also be considered an act of rape, as it undermines the sex workers (or anyone’s) consent, and again makes a mockery. Once more, through connecting with peers, I was able to determine it is the same men acting with impunity and repeating this behaviour on whoever they can. These men need to be accountable to the law and the law must consider the rights and dignity of sex workers.
Finally, there’s one more issue that I would like to draw your attention to. In my experience, I have had clients attempt to film me without my consent. This can be done by insidious means, such as a pen, glasses, or a light shade. Again, because of my vast experience, I have been able to circumvent being a victim of this. When I reported this to the police, I was told the law had nothing to offer me as the footage was not taken or shared. I implore you to consider non-consensual filming of a sexual, or the attempt, act a criminal offence to deter this behaviour amongst predators.
Thank you for considering my submission and taking the first step towards furthering public health, human rights and safety for sex workers. I am happy to provide evidence for each of my points and elaborate further on my experience if need be.
Kind regards,
Estelle Lucas