Nothing About Us Without Us - NAUWU > Background Information

Background Information

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NAUWU would like to give you some background information and history of the issues NSW Sex Workers have been facing for years. Stigma and discrimination is nothing new to our experience and we have been lucky enough to have activists like Maria McMahon, Scarlet Alliance, private workers and a few other key stakeholders doing what they can to raise awareness and combat the discrimination sex workers face.

Below is a power point presentation Maria McMahon (who now works at Scarlet Alliance) gave to a Consortium on Sex Work. Basically a consortium is where a whole lot of people in health promotion, NSW Health, researchers etc all get together to talk about a particular issue. On one of these days, they decided to talk sex work and below is what Maria presented. It really covers the issues we face and is as true today as it was then.....

          

            

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I’d like first to thank the Consortium for this opportunity to present here today.

My name is Maria McMahon, and I am the Policy Advisor on sex work at the AIDS Council of NSW.

I work closely with the Sex Workers Outreach Project, SWOP, to monitor the impact of legislation, and to develop policy positions on issues affecting sex workers.

Today I’m going to discuss the laws and policies relating to sex work, and describe how the stigma and discrimination they enable impacts the practices and outcomes for sex workers.

   

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Brothels, or sex services premises were decriminalised, and SHOULD have been able to operate as legitimate businesses for the last 14 years.

The Police are no longer the regulators.

It is local councils who regulate where and how sex services premises can be located through their planning regulations. Councils, in partnership with otherauthorities, such as WorkCover and Taxation, can regulate sex industry premises just like any other business.

There are sex services premises of one form or another in every local government area in NSW. There are 150 councils or shires, all of whom make customised planning policies.

Most of the industry is indoor based, so council planning regulations affect the majority of sex workers, and how they can work.



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Prostitution, or sex services is defined under the Summary Offences Act, as sexual intercourse or the masturbation of another person using any part of the body or an object, in exchange for money. Due to this definition, many types of premises offering sexual services, are considered to be “brothels” and are able to be regulated by the local council.

Under NSW law a “brothel” is defined as any premises that is used for the purposes of prostitution even where there is only one worker or any premises advertised as being used for prostitution (sex services)

This definition covers the majority of workplaces.

Sex services premises may include:

Commercial sex services premises (brothels)

Massage parlours providing sexual services

Home occupations involving sex work (private workers)

Safe house premises providing rooms for street sex work

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[1] SWOP information tabled to the Sex Services Premises Planning Advisory Panel 2002-2004

[2] Standard Instrument (LEP)Order 2006, NSW Parliament, March 2006

Restricted Premises Act(Disorderly Houses Amendment Act 1995)

Brothels Amendment Act 2007

     


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Local Environment Plans are formal legal instruments, signed off by the Minister for Planning.

A council’s LEP is the planning policy which defines land uses and regulates options for a land use in that zone to be:

Authorised (or "legal") - approved with a DA or allowed without active consent from Council, as exempt or complying development;

Unauthorised - not yet approved, but able to be approved in that zone and location; versus

Illegal - a use that is not permissible in the zone and location so can not be authorised or considered to be complying development.



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With the exception of a handful of councils who acted in the spirit of decriminalisation, local councils have not adopted reasonable planning controls.

A Department of Planning directive in 1996 told councils they were not allowed to ban brothels outright, however allowed councils to relegate brothels to just one zone in their LEP, such as the industrial zone. This directive entrenched discrimination right from the beginning of the decriminalisation process.

As a result, the majority of councils allow brothels only in industrial zones, (which includes all indoor sex services premises).

This creates “illegal brothels” of all those businesses in the “wrong” zone including :

home occupation private sex workers (naturally in residential areas) and

existing premises in commercial areas (their natural habitat for a customer service industry)

This “illegality” makes them targets for “dobbing in” by competitors, or disgruntled clients, or for council compliance action..


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Local Council discrimination in relation to the sex industry

Less than 15% ofcommercial brothels and massage parlours have been able to gain consent from the council to operate legally. Where they are able to be approved, the costs have soared, as businesses are refused at the local council level, then have to go through the Land and Environment Court to get approval.

The zones in which sex services premises are allowed don’t make sense from a business perspective. This is a customer service industry, yet councils have relegated it to the industrial zone.

Businesses who have done the right thing then have to spend heavily on advertising to attract clients out to their premises. Also, getting staff, predominantly women, to come to industrial zones for night shifts is difficult, due to the personal safety risks.

At the same time, the zoning may make private work from home technically illegal, giving private workers the choice of risking being identified and closed down, or going to work in a brothel where they have less choice over the services, and must work long shifts, and do more services to make their money.


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The media and councils continue to run the line that “illegal” brothels are a big problem yet few have identified the fact that the illegality is created by the councils’ inappropriate policies.

As just 15% of sex services premises are authorised, hundreds are “illegal” due to inappropriate planning policies. These workplaces may be subject to closure.

For example, North Sydney council had given approval years ago to a handful of massage parlours, and had left them all alone for over a decade, until there was a genuine legal brothel application before council, which met their planning requirements.

Suddenly the council realised their culture of “turning a blind eye” to sex services premises was going to be exposed. Instead of being pro-active and responsible, to include the existing massage premises the council went to war against the genuine applicant and the whole industry!

The councillors and the Mayor used the media to speak stridently against the application and all brothels,and the premise was refused approval. Yet, the application met the criteria and won at Court, at great cost to both the applicant and ratepayers. In the meantime, the other existing premises were targeted for closure.

Why tell you all this? Well, it shows how the sex industry is discriminated against on both a case by case basis and generally. Brothel operators and sex workers are discouraged from doing the right thing. Councils treat the issue as a political football, which enables grandstanding on the issue, without taking up their proper role which is to regulate land uses appropriately.


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Now I’d like to discuss stigma and sex work

Stigma is a lifelong “branding” that may impact on a person, their friends and family, relationships, reputation or position and which affects the person’s self esteem, and many areas of their life. Stigma is transferable by association with the person or activity.

Sex workers who tell others about their work may face issues in their personal lives such as ostracisation from their family, relationship breakdowns and possible loss of custody of their children. They may also face blackmail, standovers, and harassment particularly from men in their lives such as neighbours, real estate agents, or bank staff.

The average stay in the sex industry is 2.5 years, yet the stigma lasts a lifetime.

Because sex work and the sex industry is so highly stigmatised, it affects people's behaviour, choices and options.

SWOP has contact with sex workers who have never told anyone about their work, who control where and how they work to reduce the potential for being identified.

Sex workers protect their confidentiality and anonymity very strongly. For example, workers never tell their real name at work, change their appearance for work and would not take ID or anything with their name on it into the workplace. Most workers have complex alibi systems to explain their hours of work and the job they do. They live a double life.

Sex workers may fear exposure by operators, co-workers, clients and others. Workers don’t mix “friends” they know through work with other social networks.

As anyone can imagine, this fear of “outing’ and the stigma and discrimination sex workers experience as a result creates a lot of stress and problems.


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Politicians, councillors and councils also fear being associated with the sex industry and sex workers

Councils have lost elections due to sex industry debates.

There is no leadership on sex work policy and no champion in public life due to this fear of stigma.

Those who attack the sex industry do so knowing that sex workers will rarely take the risk of joining the public debate. In effect, lobbyists can trade on the stigma and discrimination that sex workers fear, by outing sex workers or workplaces that were otherwise not known to the public.

For example, in January 2007, there was a front page newspaper story and photo of an unauthorised brothel and sex worker. The address, names and other information provided would have put those people at risk.

This was part of a campaign to build political pressure to gain powers for councils to close brothels. Within days politicians agreed to create new closure powers – giving councils a bigger stick to use against an industry that it failed to appropriately regulate in the first place.

These politicians looked “tough on crime”. In fact, what was needed was leadership to assist councils to plan for brothels so that they could become legal.


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What does this DO to sex workers?

Sex workers going for a job, don’t know whether a workplace has approval to provide sex services, or only for non-sexual massage. Owners and operators guard the information, as it can lead to problems and even closure if they haven’t got the right consent. Sex workers Occupational Health and Safety, their rights and responsibilities are undermined by this environment.

Workers experience poor and temporary work place set-ups, a lack of safe sex equipment being made available, and unclear negotiation between clients and the business about the services to be provided. Health service providerssuch as SWOP are denied entry, as the operator worry about it being known that sex work is taking place.

This opens the door for uncertainty in relation to all regulation and responsibilities at work. Sex workers work is not treated as work, and they miss out on the benefits of a well organised, legitimate workplace.

Worse still, illegal workplaces can be targets for corrupt behaviour, including council and other authorities, or people posing as regulators, such as seen in the ICAC case involving a Parramatta council officer who took bribes and free sex services, rather than closing down the business.

NONE of these outcomes reflect the intentions of decriminalisation.


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Owners and receptionists should support sex workers in using condoms and refusing clients with an STI, but unfortunately this isn’t always the case. We can see advertising for “natural” unsafe sex services, and workers tell SWOP about businesses encouraging regular customers even those with untreated STIs.

Despite these unsupportive settings, sex workers manage to provide safe sex. Hence sex workers bear most of the responsibility for safe sex at work, and for monitoring their own and even the client’s sexual health.

For example, sex workers have to negotiate for condoms in the workplace:

To be made available

To be used and used properly

Then sex workers have to negotiate this again, client by client without support.

Sex workers bear all of the responsibility in the work room for negotiating with clients, as other parties avoid declaring the exact nature of the services available.

This reality doesn’t match the “irresponsible” stereotype of a sex worker.


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There has been no recorded case of HIV transmissionina sex industry setting in Australia, either sex worker to client or client to sex worker.

HIV is rare amongst sex workers in NSW, and STI prevalence is extremely low. (Ref 1)

This has been achieved due to sex workers response, as sex workers have taken up the responsibility of safe sex. Sex workers know that STIs can cost them time and money, so take great care to prevent transmission.

Peer education between workers, and between SWOP and the industry has created a safe sex culture. Condom use at work is consistently high at 97% (ref 2) and has been consistently high for close to 20 years.

Yet, in every brothel, every day a client willask for sex without a condom. Sex workers know how to negotiate condom use, and will protect themselves (and the client and their other partners) by using condoms. Sex workers use subtleways to get the condom on, using every trick of the trade.

In addition to condom use, sex workers check clients for visible STIs and may offer alternative services or send the client away.

Sex workers in NSW are also self-regulating in relation to STI screening and treatment.

The decriminalisation of sex work and the availability of free, anonymous, and confidential sexual health services has supported this ongoing safe sex culture. Sex workers in NSW enjoy excellent sexual health as a result of their own responsible approach, with very low levels of both the common STI’s and HIV.

Ref 1. Sex work and the law, Sexual Health 2005, 2, 121-128 Christine Harcourt, Sandra Egger, Basil Donovan Ref. 2. see Donovan B. MJA 1984; Philpot CR. Genitourin Med 1991; O’Connor C. Genitourin Med 1996; Donovan B. ISSTDR/IUSTI Berlin 2001


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The NSW Public Health Act 1991 applies ONLY to scheduled medical conditions (ref 1)

It is not illegal for people with HIV in NSW to do sex work, or to be a client of a sex worker.

However…HIV positive people must inform each of their partners before engaging in sex, and partners must voluntarily accept the risk.

HIV positive sex workers or clients should disclose, and seek informed consent from the partner to the risk of transmission.

The Public Health Act contains unnecessary provisions in relation to the sex industry. It makes it an offence for sex industry operators who know a person has a scheduled condition to let a sex service take place without informed consent, and both the operator and the HIV positive person can be charged. For this reason, owners of NSW sex industry businesses may require sex workers to provide certificates of attendance at a sexual health clinic (not their results) at work, that can be used as a defence for operators.

Of course, clients are not required to provide any evidence of sexual health monitoring, which is discriminatory, given that only the client is likely to request unsafe sex!

There have been no sex industry prosecutions.

Clearly, given the sex industry excellent track record on STIs and condom use, these laws would appear to be superfluous.

HIV, Syphilis, hepatitis, Chlamydia, gonorrhoea (not warts and herpes)


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Now I’d like to discuss the systemic discrimination that surrounds the sex industry.

Local government is too close to the electorate to be able to handle this sensitive issue well. Councils and the state government have sent the wrong message to the community on numerous occasions.

There is a lack of leadership and principles to guide decision making

Debate keeps returning to the “bad old days” with the “illegal” brothel issue, and the type of language and attitudes displayed in the debate.

For example, one counsellor says in a local newspaper article about a legal brothel application:

“brothels are widely regarded as undesirable businesses. They attract the dregs of society, including the criminal element, drug dealers, standover merchants and illegal immigrants who are invariably exploited.”

Meanwhile, NSW Premier Morris Iemma is on the record referring to illegal brothels as a “filthy trade” and saying “Illegal brothels can destroy the amenity of a residential area, intimidate residents and families, put our children at risk, and are a magnet for other types of crime” .

There is a continuous use of fear, misinformation and stigmatisation that goes with this debate, which is much at odds with the evidence and reality.


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The NSW government has been through a number of exercises in relation to sex industry policy including the intergovernmental Brothels Taskforce, reporting in 2000, and the cabinet appointed Sex Service Premises Planning Advisory Panel, which created Guidelines for councils in 2004.

The Brothels Taskforce report led to the setting up of the Panel, which went about a comprehensive evidence-based approach to developing the Guidelines. However, theGuidelines :…Are not obtainable on government websites; Have not been promoted to councils who are in most need the advice; and were “shelved” during the development of statewide planning legislation that could have solved many issues.

Issues identified in these committees have never been addressed, and successive Ministers have ignored their responsibilities. For example the state government received evidence for over a decade of the negative impacts created when home occupations are caught up in the definition of a brothel. Just as a tutor doesn’t constitute a school, and a home hairdresser doesn’t constitute a salon, a private sex worker and their home is not a “brothel”.

Private sex workers, ACON, SWOP, Scarlet Alliance and AFAO, along with the NSW Department of Health and the Anti-Discrimination Board have provided information and advice to the Panel and Guidelines process, but as yet no Minister has taken steps to address the issues. I believe this is due to a fear of the associated stigma and being labelled the “Minister for Brothels”.

The policy aims should be compliance and participation in the legal system, but in real life the lack of leadership means this is not possible.


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There is an enduring stereotype of brothels as wild, risky, dangerous places that does not match the evidence.

In the 14 years since decriminalisation, only one business has been closed due to amenity impacts, such as noise and parking problems in the whole of NSW. Brothels are probably one of the quietest most discrete businesses to have as neighbours.

Brothels don’t want to be known as brothels.

No one wants to be seen entering or leaving a brothel.

Neither the operators, clients or workers wish to be associated with the business.

Brothels are run to be discrete, invisible and keep the people involved out of the public eye, and are usually practically invisible.


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Debates and the media play on the fact that so little is out in the open. The mystery created by the inability of the people from within the industry to participate in the debate enables sensationalism to replace the truth.

Sex worker advocates have to be prepared to risk exposure and take the consequences of being out in the debate. Sex workers may experience enormous personal costs for their efforts. The advocacy work is demanding yet rarely rewarding, goes unsupported, and attracts the worst types of retaliation in terms of personal attacks, undermining and ridicule.

Discrimination is a key issue for communities affected by HIV. This advocacy scenario, where sex workers can’t easily participate in itself is a form of discrimination. Sex workers are a community affected by HIV/AIDS and other STIs yet there are no mechanisms to protect us as participants in public policy forums. Also, sex workers are likely to be women, transgender people or gay men, which adds another barrier to participating equally.

There are no anti-discrimination protections, so sex workers enter debates with nothing but sheer guts and determination behind them. For every long hard fight, there is little progress, as there simply isn’t enough support, and there’s no-one championing this cause.

NSW decriminalised the sex industry over a decade ago, and yet every week sex workers and their workplaces are misrepresented and diminished in news stories, with no recourse.

Our task as sex workers, and at SWOP, is to keep collecting and providing the evidence that shows the reality of sex workers lives, to put the real issues on the table and to get sex workers the rewards they deserve for the work they do and have done.

SWOP and other sex worker advocates are ready and able to work with government. We have most of the solutions documented in the Guidelines, which have been influential in non-discriminatory Land and Environment Court decisions. Now we need a commitment to implementing fair and equitable legislationand policy that will reward sex workers for the incredible leadership they show every day in their work, against the odds

  


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Here are some references to key resources, and contact information for SWOP.

Thank you very much for listening.

                

                

                

             

                

                

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