Note: this web page was originally an historical document produced in February 2003. However, the changes to the association's address and other details have since been updated.
This file is also available at the TransWest web site www.geocities.com/transwest_wa/
Recommended Internet
Resources
on Transgender and Intersex people
(formerly the Gender Dysphoria Association of Western Australia Inc.)
8 February 2003
To:
The Co-ordinator, Prostitution Control Bill
c/- The Minister for Police & Emergency Services
13th Floor, Dumas House
2 Havelock Street
WEST PERTH
Western Australia 6005
TransWest: the Transgender Association of Western Australia attempts to represent the interests of transgender people in all their diversity. A transgender person can be quickly but inadequately defined as someone who does not identify as a member of the sex they were assigned at birth, and who often lives as a member of the opposite sex as an adult. An intersex person is one who is born with reproductive organs, genitalia and/or sex chromosomes that are not exclusively male or female. (Intersex is mentioned here because some people are both transgender and intersex). Such people form a generally stigmatised and marginalised group in our society and exist in a legal grey area. Their presence in the world is routinely overlooked by legislators, a perennial problem for us.
TransWest is gravely concerned that this proposed legislation, which has given the existence of transgender people no consideration at all, will have adverse effects on the lives of those transgender people who work in the sex industry. Sex work is itself a stigmatised activity and transgender sex workers are thus doubly stigmatised. We feel very strongly that this proposed legislation if enacted in its current form will be to the detriment of all sex workers in general and all transgender sex workers specifically, making their already problematic lives even more difficult, dangerous, and generally precarious.
TransWest's main objections to this proposed legislation are, naturally, focused on those sections which most clearly relate to transgender sex workers. In our view this Green Bill contains many ill-considered, unrealistic, unnecessarily punitive and frankly Orwellian measures. It appears to be based on so many antiquated and factually false assumptions about sex work and sex workers, and takes such a cavalier attitude towards important human rights, that we consider it a disaster in the making for sex workers across the board. Obviously, what applies to sex workers generally applies to transgender sex workers in particular. On this basis we oppose many sections of the green Bill which are not directly or specifically related to the situation of transgender people per se.
TransWest is also very disheartened to see such backward looking, morally reprehensible, unenlightened, stigmatising, and disempowering draft legislation make it to the Green Bill stage. This is especially disappointing after the forward looking, morally progressive, enlightened, and empowering legislative changes in the area of Gay and Lesbian law reform, which had given us hope, now much diminished, of further progressive legal reforms from this Labor Government.
TransWest is of the view that the stated objectives of the proposed legislation will not be achieved by the measures specified in the Green Bill. Quite the contrary: we believe that the Green Bill, if it became law, would have the opposite effect to that which is intended. The problems with the proposed legislation are far from being minor problems and the effect in the real world will be to criminalise more sex work, rather than the reverse, and result in greater, rather than less, participation of "organised crime" in this racket. It will increase, not decrease, the incidence of sexually transmitted diseases and lead to more exploitation, more abuse, and more police corruption whilst resulting in less control and less safety for everyone. We base this view on what we have been told by our contacts in the sex industry and our review of the available literature (web links to some of this are provided at the end of this preamble). An instructive case in point is the experience in Victoria, where the known effects of legalisation within a licensing model have been an increase in the size of the "illegal sector" of the sex industry, greater exploitation of sex workers in both the legal and the increasing number of illegal brothels, as well as an increase in the number of street prostitutes (1) (2). In Queensland the difficulties encountered in obtaining licenses for brothels have forced many sex workers to work illegally due to the restricted supply of legal premises to work in.
We are puzzled over how this Green Bill ever got to see the light of day. It seems to have been concocted in a factual vacuum. The natural conclusion is that wholly unwanted effects which defeat the objectives of the Green Bill and which are known to have occurred in other states where similar legislation is in force are almost certain to be replicated in Western Australia if the Green Bill becomes law.
TransWest is of the collective opinion that, ideally, the best thing that could happen is that the proposed legislation be scrapped. A fresh start is indicated, but this time with due regard to the facts, including experience in other States, and proper consultation with people in the sex industry which to our certain knowledge was virtually nonexistent with this Green Bill, despite claims to the contrary.
In addition to the many recommendations in the body of this submission, TransWest's main recommendations are:
1. The Green Bill be discarded and a new start made on drafting much more suitable legislation in consultation with organisations with expertise in this area and taking into account experience in other Australian states.2. The requirement for individual sex workers to be licensed should be dropped.
3. Sole operators should be allowed to both work from home and do escort work ('in calls' and 'out calls').
4. All penalties should be removed or severely reduced.
5. The rules of natural justice should be applicable to sex workers and the onus of proof should be on the accuser, not the accused.
6. Any bill on sex work should make provision for transgender and intersex people.
7. There should be no forced segregation of sex workers based on them being male, female, transgender or intersex.
8. Sex workers must be able to advertise details of their sexual physiology and the services they offer.
9. Any legislation passed by the WA Parliament and any regulations by government agencies should use gender-inclusive language.
10. Any board overseeing the sex work industry should not have as one of its functions the deterring of people from taking up sex work.
1 www.aic.gov.au/publications/lcj/working/ch2-3.html
This is from the Australian Institute of Criminology. The particular link is to a chapter relating specifically to the Victorian experience. The whole article, of which this chapter is a part, is about comparing different approaches to dealing with the "problem" of prostitution. An enlightening history of prostitution in Australia is presented.
2 www.portphillip.vic.gov.au/prostitution_sexwork.html
This is a link to a website associated with a research project, with many articles about the Victorian experience. The Victorian Government was initially involved but inexplicably pulled out before the project's recommendations could be made to the government.
1. Short title
This Act may be cited as the Prostitution Control Act 2002.
TransWest recommends that the word 'prostitution' not be used in the title or the body of the proposed legislation. We suggest 'the Sex Industry Regulation Act' or something similar.
5. Objectives
The main objectives of this Act are &emdash;
(a) to safeguard public health and wellbeing against adverse effects of prostitution;
(b) by promoting the welfare, occupational health, and safety of prostitutes and by other means, to protect prostitutes from exploitation;
(c) to protect and control the social and physical environment of the community by controlling the location of brothels and prostitution agency offices and the carrying on of businesses involving the provision of prostitution;
TransWest is of the opinion that none of these objectives will be realised by the measures specified in the Green Bill. We note that no details of the supposed adverse effects of prostitution are given and we question the assumption implied in s.5 (a) that public health and wellbeing are threatened by sex work.
8. Membership of Board The members of the Board are &emdash;
(a) a chairman appointed by the Governor on the nomination of the Minister;
(b) the following persons ex officio &emdash;
(i) the Commissioner of Health; and
(ii) the Commissioner of Police; and
(c) 3 other persons appointed by the Minister.
9.
(2) Appointments under section 8(c) are to be made as follows &emdash;
(a) one person is to be the nominee of the Minister responsible for the administration of the Local Government Act 1995, who is to make the nomination after complying with section 10;
(b) one person is to be a medical practitioner; and
(c) the remaining person is to be appointed after the Minister has complied with section 1.
TransWest opposes s.8 and s.9
TransWest recommends that if a board is to be constituted at all, then the appointment of people from the sex industry representing the interests of sex workers be mandated in legislation.
14. The functions of the Board are &emdash;
(a) to disseminate information and provide education in accordance with section 15;
(b) to advise the Minister on policy in relation to prostitution;
(c) to develop strategies to deter persons from becoming prostitutes, and to advise prostitutes wishing to cease prostitution.
TransWest opposes s.14(c)
TransWest recommends that, given that a board exists, deterring people from becoming prostitutes not be one of its functions, as this may lead to the board construing its purpose incorrectly to be the suppression of prostitution, and this may lead in turn to an excessively punitive stance being taken resulting in persecution of sex workers.
29. Licence needed to act as prostitute
A person who acts as a prostitute commits an offence under this section unless the person has a prostitute's licence. Penalty: Imprisonment for 2 years.
TransWest opposes s.29
TransWest recommends that individual sex workers not be licensed, as this: a) will lead to permanent stigmatisation; b) labels the person instead of their behaviour, thus violating a basic principle of education and offender correction; c) offers no protection to sex workers and may interfere with a person's otherwise possibly high standing in the community; d) denies the multi-faceted nature of many people; and e) leads to a penalty which is excessive compared to other regulated industries.
32. Licence needed to act as prostitution driver
(1) A person who acts as a prostitution driver commits an offence under this section unless the person has a prostitution driver's licence for the business concerned. Penalty: Imprisonment for 2 years.
(2) A person acts as a prostitution driver if &emdash;
(b) the person transports a passenger on a journey that the person knows is undertaken wholly or partly for the purpose of that passenger taking part, whether as a prostitute or a client, in an act of prostitution.
TransWest opposes s.32
TransWest recommends that drivers not require licenses.
33. Board may grant licence
The Board may, in accordance with this Part, grant &emdash;
(a) a prostitute's licence;
(b) a brothel operator's licence;
(c) a prostitution agent's licence;
(d) a prostitution manager's licence; or
(e) a prostitution driver's licence...
TransWest opposes s.33 (a) and s.33 (e)
TransWest recommends that neither sole operator sex workers nor sex work drivers be required to have licenses.
34. Multiple licences
(2) A person who has a prostitute's licence &emdash;
(a) cannot have more than one prostitute's licence; and
(b) cannot have a licence of another kind.
TransWest opposes s.34 (2)
TransWest recommends that s.34, (2) be scrapped as individual prostitutes ought to have a choice of where, when, and how they work. Additionally, restricting this ability to choose is unnecessary and compares very badly with other industries, for example the child care industry, where a person can be simultaneously a manager, owner, operator and child care worker. This also prevents workers from progressing out of the industry for example by doing sex work less and becoming a part time driver. They could thus ease themselves out of sex work. It is also limits older sex workers who may wish to ease themselves out of sex work because of age-related health issues by becoming part-time managers or agents. This lack of mobility traps sex workers, or makes it necessary for individuals to operate outside an unrealistic licensing system.
36. Material required to accompany application for licence
An application for a licence is to be accompanied by &emdash;
(a) evidence of the applicant's age and identity; and
(b) photographs of the applicant in such number and form as the Board may determine.
37. Other material to support applications for certain licences
An application for a licence other than a prostitute's licence is to be accompanied by &emdash;
(a) testimonials from 2 persons as to the applicant's character given not more than 6 months before the application is lodged
TransWest opposes s.36 and s.37
38. Finger and palm prints of applicant for licence
(1) The Board may... require an applicant for a licence to ... have fingerprints and palm prints taken.
(3) The Commissioner of Police is to cause fingerprints and palm prints taken under this section and any copy of them to be destroyed &emdash;
(a) if the applicant is not granted a licence; or
(b) if the applicant is granted a licence but afterwards &emdash;
(i) the licence ceases to have effect; and
(ii) the person whose prints were taken requests the Commissioner, in writing, to destroy them.
TransWest opposes s.38(1)
TransWest recommends that standard ways of authenticating people's identities be used, as happens in other industries which are licensed, because there is no special reason for this extreme measure in the sex industry. s.38(1) would have the effect of criminalising people psychologically. TransWest expects it would create a sizeable number of people who feel forced to operate in sex work outside this onerous licensing system.
TransWest Supports s.38(3) because it helps to counter the stigmatising effects of other sections of the bill.
39. Restrictions on who can have certain licences
(1) Without limiting the restrictions imposed by subsection (3), the Board cannot grant a licence to an applicant unless &emdash;
(iii) the applicant has no charge pending of an offence alleged to have been committed in this State that involves an act of violence against the person or involves a victim who was a child;
(iv) the applicant has not been declared under the Misuse of Drugs Act 1981 section 32A to be a drug trafficker;
(v) the applicant has not been found guilty of an offence described in Schedule 2...
TransWest opposes s.39
TransWest recommends that s.39 be scrapped because people with a criminal record who wish to work in a legal occupation ought to be able to do so unless there are compelling reasons for them not to, for example convicted child molesters working as teachers. Ordinarily there would be no compelling reasons in the case of sex workers. It should be noted that the incidence of drug abuse among sex workers is about the same or lower than the general population. Also, there is no time limit specified in the Bill for old convictions. This will ensure that people who have run afoul of the law once in their life will remain criminalised for life if the only work they can find is in the sex industry, for they will then obviously have to operate outside of the licensing system.
41. Extracts of licence
(2) The extract of licence issued to the holder of a prostitute's licence is to contain sufficient information to enable the identity of the holder to be ascertained from the records of the Board, but it is not to contain the name or other identifying personal details of the holder.
TransWest opposes s.41
TransWest recommends that no age related information be included on any such extract, nor should it include information on sex or gender, as the legal status or history of transgender sex workers may vary from their current lived sex or gender, or that which they're working as. Insisting they carry ID which they see as insulting, inappropriate, or worse, will only ensure a large number operating in sex work outside the licensing system.
61. Certain matters to be specified in licence
(c) that only male prostitutes, or only female prostitutes, as the case requires, may act as prostitutes at the brothel.
TransWest strongly opposes s.61
TransWest recommends that transgender people be taken into account in the Bill on the basis that, contrary to the assumptions made in the Bill, transgender people actually exist. We recommend that intersex and both male-to-female and female-to-male transgender prostitutes be permitted to work alongside natal males and females as the sex they identify as, usually the sex opposite their legal sex according to current law, or be able to work in brothels that specialise in catering for clients who want the services of intersex or transgender prostitutes.
s.61 completely ignores the reality of the existence of transgender people, a serious oversight. s.61 could be used to effectively exclude transgender people from receiving sex work licenses.
s.61 also unnecessarily separates male and female sex workers. It is absurd to segregate sex workers forcibly when there may be an economic imperative for a mixture of sexes or genders. In Sydney, NSW, there are parlours and private situations where male and female sex workers are on the same premises, working harmoniously, keeping each other company or catering for specific client desires. Making those desires not legally satisfiable only guarantees they will be illegally satisfied. There are also harmonious parlours and private situations in Sydney where transgender workers work with non-transgender workers (male and/or female). Depending on the legal sex or gender status of the transgender people (which may vary from their current actual gender or sex), this may be prohibited under the Bill. S.61 ignores the Gender Reassignment Act 2000 and could lead to two post-operative male-to-female transgender people being unable to work in the same brothel if one is legally female and the other is legally male. This restriction would also prevent pre-operative transgender people and transvestites from working with post-operative transgender people, and separate male-to-female transgender people from female-to-male transgender people, thus breaking up natural alliances and support networks or making it imperative for many transgender sex workers to work outside these restrictions (that is, illegally, causing all the old problems of police corruption and health risks).
66. Certain matters to be specified in licence
(c) that only male prostitutes, or only female prostitutes, as the case requires, may act as prostitutes for the prostitution agency business.
TransWest strongly opposes s.66
TransWest recommends that transgender people be taken into account in the Bill on the basis that, contrary to the assumptions made in the Bill, transgender people actually exist. We recommend that intersex and both male-to-female and female-to-male transgender prostitutes be permitted to work alongside natal males and females as the sex they identify as, usually the sex opposite their legal sex according to current law, or be able to work in brothels that specialise in catering for clients who want the services of intersex or transgender prostitutes.
s.66 completely ignores the reality of the existence of transgender people, a serious oversight. s.66 could be used to effectively exclude transgender people from receiving sex work licenses. s.66 also artificially separates male and female sex workers. S66 creates another illegal sector of the sex industry, just like s.61.
85. Persons with certain health conditions not to use prostitutes
A person who knows, or could reasonably be expected to know, that he or she has a sexually transmissible infection commits an offence if he or she invites or allows another person to act as a prostitute for him or her. Penalty: Imprisonment for 2 years.
TransWest opposes s.85
TransWest recommends that a less punitive approach be used, if minimising the spread of STDs is the actual aim, as s.85 effectively creates an illegal industry for men with HIV, chronic hepatitis A or B, or herpes. These people will not stop seeking sex, and finding ways of getting it, but of course, by forcing them underground, there will be no health education (such as how to have sex without transmitting these conditions, or how to treat those conditions so as to minimise infectiousness). This will cause these diseases to spread further into the general population. What is desirable from a public health point of view is to make it more likely that clients seeking sexual services will disclose any transmissible conditions, thus enabling the sex worker to provide a suitable service that minimises the risk of transmission, such as an alternative to intercourse.
86. Prophylactic to be used
It is an offence for a person to take part in an act of prostitution without using a prophylactic that is appropriate for preventing the transmission of bodily fluid from one person to another. Penalty: $6 000.
TransWest opposes s.86
TransWest recommends that a health education and promotion method is more appropriate, and will be ultimately more effective, then the punitive approach being considered here, as indicated by decades of research on HIV transmission. s.86 is in any case absurd for acts of masturbation or other non-penetrative sexual acts.
87. Advertising prostitution
(1) A person is not to publish or cause to be published an advertisement of prostitution that &emdash;
(a) fails to identify the prostitution business licence...
(b) describes a sexual activity the performance of which is offered or refers to any sexual preference of the client or the prostitute;
(c) refers to the age or race or any other prescribed characteristic of the prostitute;
(2) A person is not to broadcast or cause to be broadcast an advertisement of prostitution other than through a newspaper or by other means approved by the Board.
(5) An advertisement is disseminated through a part of the computer network known as the internet if it is sent, or made accessible through, the network or any part of it. Penalty: $6 000.
TransWest strongly opposes s.87
TransWest strongly recommends that all sex workers be able to advertise their gender, sexuality, physical characteristics including details of their sexual physiology, and the services they provide. This is because these prohibitions are unnecessarily restrictive and will greatly increase the risks faced by sex workers, and especially intersex and transgender sex workers. If there is a misunderstanding about sexual physiology clients of these workers will accuse them of false advertising. For example, being unable to specify in advertising that the worker is transgender, transvestite or transsexual and not natal female, and pre-operative or post-operative, will lead to misunderstandings and thus to assaults. Many assaults and murders of intersex and transgender people are caused by the reaction of men who discover that a woman has a penis. To date these kinds of assaults have rarely occurred within the context of sex work but s.87 could change that. Similar misunderstandings will occur concerning the services the sex worker provides. In TransWest's view this is one of the most serious defects of this highly defective, inadequately thought out and badly researched piece of proposed legislation, and one that is life threatening.
90. Involvement in the business of self-employed sole prostitute
A person is not to do, in connection with the business of a self-employed sole prostitute, anything of a kind that is similar to anything normally done by a person in connection with a prostitution agency business. Penalty: Imprisonment for one year.
TransWest strongly opposes s.90
TransWest recommends that self employed sole prostitutes be permitted to have a security person or receptionist on the premises, or to have a driver for out-calls, or to have another self-employed worker for company, safety, support and peer health education. s.90 places sole operators at risk of violence or rape or unsafe sex or corrupt police who may also perpetrate any of the foregoing.
95. Inspection of records
(2) A person required by section 113 to hold records, or an agent or employee of the person who is at the time in charge of the premises where they are required to be held, is to produce for inspection any records referred to in subsection
(1) if required to do so by a police officer or an authorised person.
(4) A person is not, without lawful excuse, to refuse or fail to comply with a requirement under this section.
Penalty:
(a) if the requirement to hold the records applies to the person because the person is or was required to maintain them in the person's capacity as the holder of a brothel operator's licence, a prostitution agent's licence, or a prostitution manager's licence, $120 000;
(b) in any other case, $60 000.
TransWest opposes s.95
TransWest recommends that police should not be allowed to demand to see records without a warrant. Being able to demand to see financial records combined with excessive penalties will provide people in positions of authority with an incentive and a mechanism to extort money and services from sex workers.
96. Information to be given to police and authorised persons
(1) A police officer or an authorised person may... request &emdash;
(a) any person who is at a brothel or a prostitution agency office; or
(b) any person who is known or suspected to have acted as a prostitute or to have a prostitute's licence, to give that person's name and address, and any other information that may assist in identifying the person, to the person making the request.
(2) A person who, when requested under subsection
(1) to give information &emdash;
(a) fails to comply with the request; or
(b) gives information that the person knows to be false or misleading in a material particular, or likely to deceive in a material way, commits an offence. Penalty: Imprisonment for one year.
TransWest opposes s.96
108. Persons with certain health conditions not to act as prostitutes
A person who knows, or could reasonably be expected to know, that he or she has a sexually transmissible infection commits an offence if he or she acts or offers to act as a prostitute. Penalty: Imprisonment for 2 years.
TransWest opposes s.108
TransWest recommends, in the interests of public health, that the law ensure such workers are accessible to health services or educators. This will require that they're not hiding from legal sanctions and are therefore available to be taught and encouraged to practice sexual services that minimise the risk of transmission of STDs. S108 is misconceived and puts the public at great risk, as making it illegal for people with infectious diseases to buy or sell sex simply guarantees they will do this outside the law.
113. Records to be kept
(1) A licensed person &emdash;
(a) is required to maintain such records as may be prescribed, containing such particulars as may be prescribed; and
(b) is not to knowingly make any false or misleading entry in any record.
(2) The person who is or was required by subsection (1) to maintain any records is required, whether or not the person still has the licence, to hold the records at the notified premises until the end of the retention period unless they are relinquished to the Board in accordance with subsection (5).
"retention period" means &emdash;
(a) for a prostitute's licence, a period of 3 years from when the last entry was made in the records;
(b) for any other licence, a period of 7 years from when the last entry was made in the records.
(5) A person referred to in subsection (2) who no longer has the licence may, instead of holding records at the notified premises as required by that subsection, relinquish those records to the Board.
Penalty:
(a) if the offence is committed in the person's capacity as the holder of a prostitute's licence or a prostitution driver's licence, $60 000;
(b) in any other case, $120 000.
TransWest opposes s.113
TransWest recommends that a much less criminalising, less onerous, and less draconian scheme be implemented.
117. Acting as prostitute other than at brothel or through prostitution agency business A person who has a prostitute's licence is not to act as a prostitute except at a brothel or through a prostitution agency business unless the person is a self-employed sole prostitute. Penalty: $6 000.
TransWest strongly opposes s.117
TransWest strongly recommends that s.117 be scrapped, as it reduces the flexibility and autonomy of sole workers and increases the coercive powers of brothel and agency managers. Most transgender sex workers are sole operators who rely on a mixture of in-house (at home) work and out-calls (escort). It is imperative this form of mixed in-house and out-call work be legally sanctioned as transgender workers find it difficult or impossible to work in other situations such as brothels and agencies. The result of s.117 would be an increase in the number of transgender workers doing street-based sex work where they would be at a much greater risk of assault and abuse due to their obviousness. That is, because some transgender people are obviously transgender on casual observation forcing them to work on the street will lead to them being 'spotted' as transgender and make them the easy targets of hate crimes. TransWest is also concerned that this heightened visibility of transgender sex workers would result in the greater association of transgender people with sex work in the perception of the general public, many of whom are only too willing to believe outrageous claims such as that made in an article in the Weekend Australian (17 February 2001) in which it was claimed anecdotally that 97 per cent of transsexuals in Melbourne are or have been sex workers.
s.117 also impacts on the safety of all self-employed workers, who are at greater risk of rape, assault, robbery and unsafe sex if forced to always work alone. It also prevents them from doing jobs with other workers, a common client request, or rather, it forces these workers to work illegally. TransWest believes the penalty is excessive.
119. Notification of notifiable sexually transmissible infection
A person having a prostitute's licence who becomes aware that the person has a notifiable sexually transmissible infection is to give the Board notice in writing of that fact within 7 days after becoming aware of it. Penalty: $6 000.
TransWest opposes s.119
TransWest recommends that s.119 be reconsidered, because as written, it is absurd, as it criminalises workers who are illiterate, or who need to continue working for economic reasons.
120. Self-employed sole prostitute acting as a prostitute
(1) A self-employed sole prostitute is not to act as a prostitute except at the premises specified in the prostitute's licence. Penalty: $12 000.
(2) A self-employed sole prostitute is not to act as a prostitute for a brothel business or prostitution agency business. Penalty: $6 000.
TransWest opposes s.120
TransWest recommends that sole workers should be allowed to both work at home and do 'out calls'. They should also have the option of working through an agency because it would be safer than doing 'out calls' privately. s.120 reduces the flexibility and autonomy of sole workers. According to our information, about forty per cent of a sole worker's clients want service at their own home or a hotel. This is particularly important for disabled clients who find it difficult to go to the worker's premises. The disabled have a right to a sex life, and ought not have their choices in this regard restricted. s.120 also criminalises self-employed workers working together for safety, support or company, prevents any peer education of self-employed workers, prevents them from doing "doubles" with any other worker, and creates a huge class of workers vulnerable to the abuses historically perpetrated by members of the police. The penalty is, of course, excessive.
121. Independence of self-employed sole prostitute
(1) A person is not to carry on business as a self-employed sole prostitute from a place from which any other person carries on a business involving the provision of prostitution. Penalty: Imprisonment for one year.
(2) A person carrying on business as a self-employed sole prostitute is not to use the services of another person to do, in connection with that business, anything of a kind that is similar to anything normally done by a person in connection with a prostitution agency business. Penalty: Imprisonment for one year.
(3) Without limiting subsection (2), a person carrying on business as a self-employed sole prostitute is not to &emdash;
(a) use the services of another person to act as a prostitution driver; or
(b) employ a person, or engage a person under any kind of arrangement, to act as a prostitution driver for that business. Penalty: Imprisonment for one year.
(4) A self-employed sole prostitute is not to directly or indirectly direct or refer a potential client to another self-employed sole prostitute. Penalty: Imprisonment for one year.
(5) A self-employed sole prostitute is not to have an interest in a brothel business, prostitution agency business, or the business of any other self-employed sole prostitute. Penalty: Imprisonment for one year.
(6) A person who carries on business as a self-employed sole prostitute is not to allow another person to have an interest in the business. Penalty: Imprisonment for one year.
TransWest strongly opposes s.121
TransWest recommends that self-employed sole prostitutes be permitted to have a security person or receptionist on the premises, to have a driver for out-calls, or to have another self-employed worker for company, safety, support and peer health education, and be able to direct clients to other workers when the sex worker goes on holiday, or leaves the industry, or changes their situation in a way that affects their ability to work with their former clients, for example by having a sex change operation. s.121 places sole prostitutes at increased risk of violence or rape or unsafe sex, with its public health sequelae, or corrupt police who may use s.121 (4) for entrapment, and also perpetrate any of the foregoing. The penalties are completely absurd.
149. Entry of place of business without warrant
An authorised person may, without a warrant, at any time, enter any place that
is being, or is suspected of being, used as a brothel or prostitution agency office and &emdash;
(a) inspect the place and any articles and records kept there;
TransWest opposes s.149
TransWest recommends that that police and authorised officers always be required to have a warrant to enter a home, just as they would in the case of a non-sex worker. The suspicion that a premises was being used as a brothel or agency could be used to enter a sole worker's home without a warrant. This section gives too much power to the police and authorised persons.
156. Representation of persons involved
(1) A person appearing before the Board in a formal inquiry may &emdash;
(a) appear personally or, in the case of a body corporate, be represented by a director or member of the body corporate; or
(b) if the presiding member of the Board approves, be represented by a legal practitioner or other representative.
TransWest opposes s.156
TransWest recommends that anyone appearing before the Board have the right of legal representation. s.156 violates important human rights, and gives far too much arbitrary power to the Board. A Star Chamber is not required to regulate the sex industry.
157. Procedure
(1) In proceedings in a formal inquiry the Board &emdash;
(b) is not bound by the rules of evidence but may inform itself in any manner it considers just...
TransWest opposes s.157
TransWest recommends that the rules of evidence apply.
165. Police may direct person to move on
A police officer who has reason to suspect that a person has committed, or intends to commit, an offence in or in the view or within the hearing of a public place may, in writing in a form approved by the Commissioner, direct the person to move away from that place and a surrounding area specified in the direction, and stay away from it for a period of not more than 24 hours specified in the direction.
TransWest opposes s.165
TransWest considers this to contravene the basic human right to freedom of movement. The area concerned, in Northbridge, is home to some transgender sex workers. This area also contains support organisations for sex workers (Phoenix and SWOPWA) as well as non-sex worker transgender people (The Freedom Centre), and some of the very few social and entertainment venues available to such people. The issuing of a move on notice can therefore have major impacts on the health and wellbeing of a transgender person whether they are a sex worker or not. TransWest is aware of a case in 2002 under the existing law where a transgender person, who may have been known to the police as a street-based sex worker, was given a move on notice while on her way to an appointment with a support organisation and within metres of the organisation's front door. It was clear that she was not soliciting sex work in the street as she was making a 'bee line' for the organisation, was not standing still, was not in a street or an area known for sex work, and was not wearing clothes designed to attract the attention of potential clients. Because of the move on notice she was not able to keep her appointment. Our concern is that this person, who may have been 'spottable' as a transgender person, was unfairly targeted by the police based on who she was, not on what she was doing. As transgender people frequently suffer discrimination and abuse based on their appearance and who they are rather than their behaviour, we consider s.165 is dangerous as it may give rise to increased abuse of transgender people by police.
170. Provisions about searching a person
(1) A police officer cannot carry out a search of a person under this Part unless of the same sex as the person searched.
(2) If a police officer of the same sex as the person to be searched is not immediately available to carry out the search, another police officer may &emdash;
(a) cause the search to be carried out, under the direction of a police officer, by another person of the same sex as the person to be searched;
(b) detain the person for as long as is reasonably necessary for the person to be searched in accordance with this section; or
(c) convey or conduct the person to a place where the person can be searched...
(3) Nothing in this Part authorizes a search by way of an examination of the body cavities of a person unless it is carried out under subsection
(5) by a medical practitioner or a registered nurse.
(4) A police officer may arrange for a medical practitioner or registered nurse nominated by the police officer to examine the body cavities of the person to be searched and may -
(a) detain the person until the arrival of that medical practitioner or registered nurse; or
(b) convey or conduct the person to that medical practitioner or registered nurse.
(5) A medical practitioner or registered nurse may carry out an examination arranged by a police officer under subsection (4)...
TransWest opposes s.170
TransWest recommends s.170 be scrapped, or rewritten to take into account the fact that transgender people actually exist, contrary to the assumptions inherent in s.170, but for whom no provision is made.
179. Averments to do with the advertisement of prostitution
If, when bringing proceedings for an offence under this Act, the person bringing the proceedings avers that a particular thing directly or indirectly promoted or publicized prostitution, the matter averred is to be taken to have been proved unless the contrary is proved.
TransWest opposes s.179
TransWest recommends that the onus of proof be the reverse of that stipulated in s.179. This section sets a dangerous precedent of reversing the presumption of innocence and gives the police too much discretionary power.
186. Intention presumed in some cases
(1) A person loitering in or frequenting a place in circumstances giving reasonable grounds for suspecting that the person had an intention described in section 74(4)(b) or 75(4)(b) is to be presumed to have had that intention unless the contrary is proved.
(2) A person doing anything in circumstances giving reasonable grounds for suspecting that the person had an intention described in section 77(2) is to be presumed to have had that intention unless the contrary is proved.
TransWest opposes s.186
TransWest recommends that the onus of proof be the reverse of that stipulated in s.186. This section sets a dangerous precedent of reversing the presumption of innocence, and gives the police too much discretionary power.
188. Permission to use presumed in some cases
If a person (the "defendant") permits the person's licence document or extract of licence to be in the possession of another person and that other person uses it, the defendant is to be presumed, in proceedings for an offence under section 112, to have permitted that other person to use it unless the contrary is proved.
TransWest opposes s.188
TransWest recommends that the onus of proof be the reverse of that stipulated in s.188. This section sets a dangerous precedent of reversing the presumption of innocence, and gives the police too much discretionary power.
189. Presumption of knowledge of sexually transmissible infection
(1) If a person acted as a prostitute while the person had a sexually transmissible infection, the person is to be conclusively presumed, for the purposes of section 108, to have known at the time the person acted that the person had the sexually transmissible infection unless it is proved that at that time the person &emdash;
(a) had been undergoing medical examinations in accordance with subsection (3); and
(b) believed on reasonable grounds that the person did not have a sexually transmissible infection.
TransWest opposes s.189
TransWest recommends that the onus of proof be the reverse of that stipulated in s.189, and that sex workers should be encouraged to have anonymous health checks and to take responsibility for their health. s.189 sets a dangerous precedent of reversing the presumption of innocence and gives the police too much power.
191. Other evidentiary provisions
(5) In proceedings for an offence under this Act an averment by the prosecution that a person is or was carrying on a business involving the provision of prostitution is to be taken to have been proved unless the contrary is proved.
TransWest opposes s.191
TransWest recommends that the onus of proof be the reverse of that stipulated in s.191. This section sets a dangerous precedent of reversing the presumption of innocence, and gives the police too much power.
205. Exclusion of rules of natural justice
The rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to the doing or omission of any act, matter, or thing under Part 3, 4, 5, or 6 by the Board.
TransWest Strongly opposes s.205
TransWest recommends that the rules known as natural justice or due process apply as it is neither justifiable nor necessary for the Board to have these extreme powers in order to regulate sex work. Sex work is not an incredible danger to society like terrorism; clearly it is nothing of the sort. TransWest believes s.205 would be a serious violation of human rights and would set a dangerous precedent.
TransWest opposes the Green Bill as a whole, because:
1. It completely ignores the reality of the existence of transgender people (and many other realities).2. It completely ignores many time-honoured human rights essential to an open democratic society. The recurrent discarding of the presumption of innocence is shocking.
3. It criminalises sex work, in the guise of legalising it.
4. The measures to suppress the sex industry and punish sex workers&emdash;because sex workers are falsely and ignorantly presumed to be bad and a threat to society&emdash;has absolutely nothing to do with the Bill's stated objectives.
5. The strength of the powers granted to Police, to the Board, and to "authorised persons", and the unwarranted severity of the plethora of draconian penalties stipulated in the Bill, are absurdly overdone, and completely unnecessary if legalisation and regulation is the main aim.
6. The measures specified in the Green Bill will have effects opposite to the stated objectives of the Bill.
Miss Sarahjayne Marquès, Convenor
Mrs Michelle Lee, Vice-convenor
Mix Margaret Jones, Community Development Officer
TransWest gratefully acknowledges the assistance of many individuals and organisations in the preparation of this submission, including:
Phoenix
(sex worker support group)
Street
Sex Worker Outreach Project WA (SWOPWA)
Norrie M.
Welby, AIDS Council of NSW
Dr Felicity Haynes and Carol Peers, The
International Foundation for Androgynous Studies (IFAS)
Printed copies of this document are available from TransWest for $5.00
This document is available online at www.geocities.com/transwest_wa/greenbill2002/index.html
TransWest: the Transgender Association of WA: www.geocities.com/transwest_wa
Transsexual issues in WA: http://groups.yahoo.com/group/Ts_Perth
International Foundation for Androgynous Studies (IFAS): www.ifas.org.au
(based in Nedlands, Western Australia)
Chameleons Society of WA (cross-dressers): www.chameleonswa.com
The Gender Centre (NSW): www.gendercentre.org.au
Transsexual / Transgender issues (mainly Male-to-Female):
www.lynnconway.com (major site)http://groups.yahoo.com/group/trans-theory/
www.pfc.org.uk/ (major site)
International Journal of Transgenderism: http://symposion.com/ijt/
Asian Transgender: http://educ2.hku.hk/~winter/gender.htm
Transgender Law: www.law.mq.edu.au/STAFF/Asharpe/ANS.HTM
Female-to-Male Transsexuals:
m.a.n. Men's Australian Network: http://home.vicnet.net.au/~man/FTMAustralia: http://ftmaustralia.lightheaded.org/
Brain Autopsy studies:
A Sex Difference in the Human Brain and its Relation to Transsexuality (1997): www.symposion.com/ijt/ijtc0106.htmMale-to-Female Transsexuals Have Female Neuron Numbers in a Limbic Nucleus (2000): http://jcem.endojournals.org/cgi/content/full/85/5/2034
Sexual Differentiation of the Bed Nucleus of the Stria Terminalis in Humans May Extend into Adulthood (2002): www.jneurosci.org/cgi/content/abstract/22/3/1027
Androgen Insensitivity Support Group (AISSG Australia): www.vicnet.net.au/~aissg
Intersex Society of North America (ISNA): www.isna.org
Androgyne sites:
http://groups.yahoo.com/group/androgynes/
Email lists for people affected in utero by Diethystilbestrol (DES, an artificial oestrogen):
http://groups.yahoo.com/group/des-sons (main site)
Book on endocrine (hormone) disruptors: www.ourstolenfuture.org
The association began in 1997 as the Gender Dysphoria Foundation of WA Inc. (GDFWA) and was re-named in June 2001. TransWest acts as a support group, a lobby group and an educator of the general community and of target groups such as politicians, employers & ministers of religion. A volunteer peer-based association, it is not funded by government.
We seek to:
TransWest members have been active in providing assistance and information about gender issues to many other groups including the WA Department of Education and Training (DET), members of parliament, the WA Police, the International Foundation for Androgynous Studies (IFAS, based in Perth), B-LEGITS (a committee within the State School Teachers' Union), Gay and Lesbian Equality WA (GALE), Phoenix, the Queer Unionists in Tertiary Education (QUTE) caucus within the National Tertiary Education Union, the Gay and Lesbian Community Services (GLCS) and others. Many projects have been undertaken in conjunction with some of these groups.
TransWest has made submissions and petitions to government on a variety of issues. Two of our committee were on the 2001 Gender Identity Working Party convened by the WA Equal Opportunity Commission which produced a report for the Attorney-General recommending changes to the EO Act. Committee members frequently spend time with new members to help them find friendships and develop support networks within the gender community.
We offer:
Full membership (for people experiencing gender dysphoria) is $30 per year July to June ($20 concession). Associate membership for the partners and families of transgender people is $10.
Please note that we seek to foster at all times a friendly and supportive environment for all people with gender issues, and their families. 'Gender policing' will not be tolerated and confidentiality is respected at all times. We want to educate, empower and encourage individuals on their journey towards an improved quality of life by reducing their feelings of isolation and alienation.
As at November 2004