Submission to the Attorney-General

of the Queensland Government

Sex Work, HIV and the Law: An
Agenda for Action


Draft


-Calvin Wilkinson-





















Contents


1. Introduction Page 3
2. Criminalisation of HIV Status Page 4
3. Compatibility with Human Rights Page 5
4. Recommendations Page 9
5. Bibliography Page 10






































1.Introduction
Unlike many other jurisdictions, Queensland has evidence-based laws with respect to the
health promotion of people living with HIV and their protection from discrimination. It also
has some of the most humane conditions in the world for sex workers; the process of
decriminalising sex work has begun and anti-discrimination laws for lawful sexual activity
have been enacted. This report urges that the process of decriminalisation in the sex
industry must continue. Criminal laws that were intended to reduce HIV prevalence in the
sex industry are not based on evidence and have in their effect only discrimination and
stigma for sex workers living with HIV. Specifically, it is surprising and concerning that the
industry in Queensland is regulated by a law fundamentally inconsistent with an evidence-
based approach to HIV prevention, which discriminates against sex workers living with HIV,
which may be unconstitutional, and which inhibits access to HIV health services. This report
strongly recommends that Section 90 (1) of the Prostitution Act 1999 (Qld), which makes it
an offence if a person works as a prostitute at a licensed brothel during any period in which
the person knows he or she is infective with a sexually transmissible disease
1
, be repealed.

1.2 Purposes
This report sets out to:
i. Establish that the rationale for criminalising sex workers living with HIV via Section 90 (1) is
based on perception and not evidence;
ii. Assess the impact of this law on sex workers living with HIV in relation to their human
rights and access to HIV health services; and
iii. Propose recommendations for legislative and policy changes required to create an
enabling environment for sex workers living with HIV.

1.3 Human rights-based approach
This report is based on the premise that sex workers living with HIV are entitled to legal
protection of their human rights, consistent with State and Commonwealth laws, as well as
international human rights norms.

Sex workers living with HIV are entitled to realisation of their rights under domestic laws
that protect against discrimination
2
and arbitrary interference with their privacy,
3
as well as
international human rights, including rights to privacy, non-discrimination and equal
treatment before the law consistent with the International Covenant on Civil and Political
Rights (ICCPR), and the right to the highest attainable standard of health, including HIV
treatment, care and support consistent with the International Covenant on Economic, Social
and Cultural Rights (ICESCR).

In line with a human rights-based approach, the needs and issues reported by sex workers
living with HIV in the National Needs Assessment
4
provide the central basis for the human
rights issues discussed and the agenda for action proposed by this report.



1
s 5(1) Penalties and Sentences Act 1992 (Qld): The maximum penalty is 100 penalty units ($11,000).
2
s 7(h) Anti-Discrimination Act 1991 (Qld).
3
s 4(1) Human Rights (Sexual Conduct) Act 1994 (Cth).
4
Kane Matthews and Scarlet Alliance, The National Needs Assessment of sex workers who live with HIV [2008] Scarlet
Alliance. (National Needs Assessment)
2. Criminalisation of HIV status: Based on Perception, Not Evidence
The criminalisation of sex workers living with HIV is based on a pervasive and incorrect
perception that sex workers are vectors of disease, incapable of identifying or managing
risk.
5
In the National Needs Assessment, sex workers living with HIV reported that the
criminalisation of commercial sex only adds legitimacy to the existing social stigmas they
face. They know that the perception is unfounded, and look to the government to act
responsibly.
6


To demonstrate how this law is based on perception, an investigation of the rationale for
criminalisation under Section 90 (1) of the Act is instructive. The stated objectives of the
Prostitution Act 1999 (Qld) include the interest of ensuring a healthy society.
7
But more
specifically, the Explanatory Note provides that criminalisation via Section 90 (1) is
necessary, because health risks associated with the sex industry are extremely high,
particularly in relation to sexually transmitted infections including HIV.
8


If this law was based on more than mere perception, it would be expected that the evidence
points to a high rate of HIV prevalence and transmission among sex workers, with low rates
of prophylactic use. In fact, epidemiological studies confirm that the opposite is occurring.
Nationally, sex workers have low rates of HIV
9
( less than 1%), lower rates of STIs than the
general public
10
and high rates of prophylactic use.
11
Moreover, no cases of HIV
transmission from sex worker to client have been reported in Australia.
12
This suggests that
the criminalisation of sex workers living with HIV is motivated by perception, rather than
evidence or the best interests of public health.

The second point to make is that Queensland, despite its criminalisation policy, does not
enjoy lower HIV prevalence rates among sex workers in comparison with other jurisdictions.
Sex workers in Australia have a very low incidence of HIV regardless of their geographic
location or of the regulatory regime under which they work.
13
In New South Wales, the only
state where systemic decriminalisation of sex work has occurred, STI rates among sex
workers are at historic lows and condom use exceeds 99%.
14
It is also important to note that
in Queensland, the criminalisation of sex workers living with HIV only applies to licensed
brothel work, which makes up a very small part of the sex industry. It is estimated that
private sex workers, who are not subject to criminalisation based on HIV status, represent
75% of Queenslands sex work industry.
15




5
Elena Jeffreys et al, Mandatory Testing for HIV and STIs among Sex Workers in Australia: A Barrier to HIV and STI
Prevention [2012] 2 World Journal of Aids 204.
6
Matthews, above n4, 8.
7
Prostitution Bill 1999 (Qld), Explanatory Notes, 1
8
Ibid. (My Emphasis)
9
Australian Government Department of Health and Ageing, Sixth National HIV Strategy 2010-2013, Commonwealth of
Australia [2010] 16..
10
NSW Department of Health, STI Strategy Environmental Scan, [2006] 20.
11
R. Perkins and F. Lovejoy, Call Girls [2007] University of Western Australia Press.
12
Australian Government, National HIV/AIDS Strategy: Revitalising Australias response 2005-2008 [2005], Australian
Government, 19.
13
John Godwin, Sex Work and the Law in Asia and the Pacific [2012] UNDP 198.
14
Ibid.
15
Andreas Schloenhardt, Ten Years of Prostitution Regulation in Queensland [2009] University of Queensland , 6.








3. Compatibility with Human Rights
Having established that there is little, if any, evidence to support the perception that sex
workers living with HIV pose a risk that needs to be managed by criminalisation, it is
necessary to confront the impact Section 90 (1) has on sex workers living with HIV in
relation to their human rights. There are three interrelated rights to be considered:
principally, the right to equal protection of the law and non-discrimination; furthermore, the
right to privacy; and finally, the right to the highest attainable standard of health.

3.1 Right to Equal Protection of the Law and Non-Discrimination
Fundamentally, there is no domestic legal protection from discrimination and abuse where
sex work is criminalised. Sex workers living with HIV report that they experience
discrimination in all areas, including from government agencies and health services, yet they
feel powerless to take any action in response.
16


Article 26 of the ICCPR provides that all persons are equal before the law and are entitled
without any discrimination to the equal protection of the law. As Australia is a party to the
Covenant and the first Optional Protocol, Queensland must not discriminate in its laws,
whether those laws affect rights protected by the ICCPR or any other legal duties or rights.
17


Section 90 (1) of the Act operates inconsistently with Article 26 in two basic ways: Firstly, it
discriminates against sex workers based on their HIV status under the law; and furthermore,
it restrains their right before the law to equal protection from discrimination based on
impairment.

3.1.A Equality Under the Law
With respect to the first ground, the United Nations Human Rights Committee (UNHRC)
has stated that a law that discriminates is one that distinguishes, excludes or restricts based
on, inter alia, any other status.
18
Clearly, Section 90 (1) operates to restrict and exclude sex
workers living with HIV from working in brothels by force of criminalisation. Moreover, the
term any other status used in Article 26 likely encompasses HIV status, since the
Commission on Human Rights, as it then was, resolved that this term in non-discrimination
provisions can be interpreted to cover HIV status.
19


Different treatment will not constitute discrimination within the meaning of Article 26 if the
criteria for such differentiation are reasonable and objective and if the aim is to achieve a

16
Matthews, above n4 34.
17
M Nowak, U.N. Covenant on Civil and Political Rights: ICCPR Commentary (2
nd
ed, 2005), p 608.
18
United Nations Human Rights Committee, General Comment No. 18.1
19
United Nations Commission on Human Rights, Resolution 995/44.1
Self-Responsibility: Sex Worker living with HIV

I am extremely aware of what I am doing when it comes to participating with a person who is
paying me money to do so. They are not paying me money to put their lives at risk. They are
there for me to provide a service. I do provide it and provide it in a very safe manner.
National Needs Assessment 2008, 40
purpose which is legitimate under the Covenant.
20
It is not disputed that ensuring a healthy
society through HIV prevention is a legitimate purpose under the ICCPR, especially in light
of Article 6 which protects the right to life. However, it is highly questionable whether the
criminalisation of sex workers living with HIV is a reasonable means of achieving this aim. In
Toonen v Australia
21
, the UNHRC found that criminalisation of homosexual sex could not be
considered a reasonable or proportionate response to HIV prevention, since no link had
been shown between criminalisation and the effective control of the virus.
22
Applying the
same reasoning to Section 90 (1), the absence here of an evidentiary linkage between HIV
prevalence among sex workers and criminalisation, as demonstrated by epidemiological
studies
23
and the National HIV Strategy,
24
indicates that criminalisation would not pass the
reasonability test. On this ground, therefore, Section 90 (1) likely contravenes Australias
obligations under Article 26 of the ICCPR.





3.1.B Equality Before the Law
Section 90 (1) also inhibits HIV-positive sex workers rights to equal protection from
discrimination before the law. Most workers living with HIV are protected from less
favourable treatment, including dismissal, if it is based on their HIV status.
25
However, the
effect of Section 90 (1) is that a sex worker dismissed from a brothel based on his or her HIV
status would not have an equal right to protection from discrimination. This is because
under Section 106 of the Anti-Discrimination Act 1991 (Qld),a brothel owner could dismiss a
HIV-positive sex worker with impunity provided that it was in compliance with an order of a
court, which would be inevitable given that brothel owners are prohibited from employing
sex workers living with HIV under Section 89 (1).
26


Section 90 (1) therefore fundamentally restricts sex workers living with HIV from enjoying
equal protection under impairment discrimination law. This can be contrasted with the
general workplace requirement defence,
27
which the Human Rights Commissioner of the
Australian Capital Territory has argued does not automatically apply to the circumstances
surrounding a sex worker who has HIV.
28


Article 26 of the ICCPR relevantly emphases that all persons are equal before the law. In
2010, the South African Labour Appeal Court held that even though sex work was illegal, the

20
United Nations Human Rights Committee, General Comment No. 18.13
21
Toonen vs. Australia, U.N. Human Rights Committee, CCPR/C/50/D/488/1992, April 4, 1994.(Tooen)
22
Toonen, above n21, at 8.5
23
NSW Department of Health, above n10.
24
Australian Government Department of Health and Ageing, above n9.
25
s 7(h) Anti-Discrimination Act 1991 (Qld).
26
s 7(h) Anti-Discrimination Act 1991 (Qld).
27
S 89(1) Prostitution Act 1999 (Qld)
28
National Association of People Living with HIV, The Criminalisation of People Living with HIV [2009] 130.
Inequality under the Law: Sex Worker living with HIV

I dont think you can ban a positive person from doing [commercial sex] because that is just
discrimination.
National Needs Assessment 2008, 40
people who do it were entitled to protection against unfair dismissal by employers since
Section 23 of the South African Constitution provided that everyone was entitled to labour
rights, and everyone means everyone.
29
The UNHRC by individual petition may similarly be
tempted to read down Section 90 (1) in a case involving a criminalised Queensland sex
worker who claims equal legal protection from discrimination under Article 26.










3.2 Right to Privacy
Section 90 (1) moreover arbitrarily violates the privacy of sex workers living with HIV and
may be subject to constitutional challenge. Among sex workers living with HIV, there is a
consensus that interference by the government of commercial sexual practices through
criminalisation is an arbitrary departure from laws regulating non-commercial sex.
30


Following the decision of the UNHRC in Toonan, the Australian Government passed the
Human Rights (Sexual Conduct) Act 1994 (Cth), which provided the basis for a Section 109
constitutional challenge. Section 4 (1) of that Act provides that sexual conduct involving
only consenting adults acting in private is not to be subject, by or under any law...to any
arbitrary interference with privacy within the meaning of Article 17 of the International
Covenant on Civil and Political Rights.

Sexual conduct, in the context of Section 4(1) of that Act, was considered by the
Queensland Court of Appeal in Cannavan v Lettvale
31
to cover the physical expression of
sexual desire, and not conduct that was incidental to it, such as the termination of
pregnancy or the distribution of pornographic material. The term to work as a prostitute
from Section 90 (1) is defined as engagement in a commercial arrangement that involves
the use of one person by another for his or her sexual satisfaction involving physical
contact.
32
This broad definition seems to point strongly towards sex work as a direct, rather
than incidental manifestation of sexual conduct. It is distinguishable from that of lawful
sexual activity, which has been construed narrowly as the status as a sex worker rather
than actual engagement in sexual conduct.
33


In a hypothetical case raising the constitutionality of Section 90 (1), the State of Queensland
may argue that the Replacement Explanatory Memorandum of the Human Rights (Sexual
Conduct) Bill 1994 inserts to clause 9, that when determining the reasonableness of
interference with privacy, the individuals right must be balanced against the needs of the

29
Kylie v. Commission for Conciliation Mediation and Arbitration and Others, (CA10/08) [2010] ZALAC 8;
30
Matthews, above n4, 31.
31
[2003] QCA 528 at 6 per de Jersey CJ
32 s 299E(1)(d) Criminal Code 1899 (Qld)
33
Dovedeen Pty Ltd v GK [2013] QCA 116 at 18 per Fraser J.
Inequality before the Law: Sex Worker living with HIV

I got a feeling that if you went to court and they knew you were a [sex] worker and had HIV, I
dont think, I dont know if they can prosecute you, I really dont know... I can imagine it could
get pretty ugly.
National Needs Assessment 2008 31
community. Accordingly, clause 10 states, interference with privacy is justified and
reasonable for laws concerning, inter alia, sex work, incest, sexual conduct involving
animals and the possession of child pornography.
34
This appears essentially to be framing a
moral or social mores based determination against sex workers having a right to privacy.

However, the Replacement Explanatory Memorandum would not be authoritative to a
Court in this case since the question of arbitrariness is only to be determined within the
meaning of Article 17 ICCPR,
35
which should be interpreted having regard to the views of
the UNHRC.
36
InToonan, the Committee concluded that it could not accept that for the
purposes of Article 17 of the Covenant, moral issues are exclusively a matter of domestic
governments. While not binding on the Australian courts, this robust conception of privacy
would suggest that the Replacement Explanatory Memorandum cannot mandate the
reasonableness or justifiability of interferences with the privacy of sex workers based on its
conception of community needs. Having established that point, there appears to be no
prima facie barrier for a constitutional challenge to Section 90 (1) on the basis that it
unreasonably interferes with the privacy of sex workers living with HIV. More broadly, the
Commonwealth Act seems to have implications for the constitutional validity of any
Queensland law regulating sex work that is construed by a Court to arbitrarily interfere with
the privacy of sex workers or their clients.









3.3 Right to Highest Attainable Standard of Health
Sex workers living with HIV have a right to the highest attainable standard of health,
including HIV treatment, care and support consistent with Article 12 of the ICESCR.
However, the criminalisation of sex workers living with HIV conflicts with this right because
of its stigmatisation effect, which prevents sex workers from accessing HIV health services.

For sex workers living with HIV, the right to access trustworthy and supportive HIV health
services is fundamental to improving both individual and population health.
37
Nevertheless,
responses from the National Needs Assessment indicate that stigma from criminalisation
impacts on access to and interactions with health care providers.
38
For sex workers,
disclosure of their HIV status to health workers generally leads to poor treatment,
harassment, and in one reported case physical violence.
39
The systemic relationship
between stigma and reduced health outcomes with criminalisation is manifested in reports

34
Cl 8, 9. Replacement Explanatory Memorandum of the Human Rights (Sexual Conduct) Bill 1994
35
s 4(1) Human Rights (Sexual Conduct) Act 1994 (Cth).
36
Cl 9. Replacement Explanatory Memorandum of the Human Rights (Sexual Conduct) Bill 1994
37
Matthews, above n4, 7.
38
Ibid, 8.
39
Ibid, 32
Sex Workers are not Immoral: Sex Worker living with HIV

Hookers are not all bad, theyre not. Hookers are not the people that break into peoples
houses. Hookers are not the people that bash. They dont do this...

National Needs Assessment 2008, 31
of health service workers questioning the legality of HIV positive sex workers participating in
commercial sex, and discouraging continuation of sex work.
40


In the Australian Capital Territory, the impact of criminalisation on access to health services
was demonstrated following the high-profile conviction of a male sex worker for working
while knowingly infected with HIV.
41
This case and the sensationalised media coverage that
accompanied it prompted a reduction in the number of sex workers visiting sexual health
services in the ACT area from an average of 30 sex workers per fortnight to less than 2.
42
Sex
workers living with HIV reported that the threat of social stigma resulting from the case was
manifested in perceptions that education and support services available to members of the
general community living with HIV were not being provided to sex workers living with
HIV.
43
This highlights the systemic impact that criminalisation, in conflict with Article 12 of
ICESCR, has on stigma and access to HIV health services.

4. Recommendations
The following recommendations, including legal and policy reforms, were informed by the
National Needs Assessment; the Principles for Model Sex Industry Legislation, and the issues
discussed in this report. The following actions are proposed:

3.1 Legislative Reform

1. That Section 90 of the Prostitution Act 1999 (Qld) be repealed.

3.2 Policy Reform

1. All Government Departments and government-funded health providers should:
a. Review internal organisation and staff attitudes towards sex workers with HIV to address
stigma; and
b. Provide an adequate education program within the relevant sectors to address stigma
and discrimination.














40
Ibid
41
National Association of People Living with HIV, above n28.
42
National Association of People Living with HIV, above n 28.
43
Ibid, 125.



Bibliography
Cases
Toonen vs. Australia, U.N. Human Rights Committee, CCPR/C/50/D/488/1992, April 4, 1994
Kylie v. Commission for Conciliation Mediation and Arbitration and Others, (CA10/08) [2010] ZALAC
8
Cannavan v Lettvale[2003] QCA 528
Dovedeen Pty Ltd v GK [2013] QCA 116

Domestic Legislation
Anti-Discrimination Act 1991 (Qld)
Criminal Code 1899 (Qld)
Human Rights (Sexual Conduct) Act 1994 (Cth)
Penalties and Sentences Act 1992 (Qld)

International Treaties
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999
UNTS 171 (entered into force on 23 March 1976), art 17, 26

International Covenant on Economic Social and Cultural Opened for signature 16 December
1966, 993 UNTS 3, art 10 (entered into force 3 January 1976), art 12

Journal Articles
Elena Jeffreys et al, Mandatory Testing for HIV and STIs among Sex Workers in Australia: A Barrier to
HIV and STI Prevention *2012+ 2 World Journal of Aids

R. Perkins and F. Lovejoy, Call Girls *2007+ University of Western Australia Press.
National Association of People Living with HIV, The Criminalisation of People Living with HIV *2009+

Reports
Andreas Schloenhardt, Ten Years of Prostitution Regulation in Queensland *2009+ University of
Queensland

Australian Government, National HIV/AIDS Strategy: Revitalising Australias response 2005-2008
[2005] Australian Government

Australian Government Department of Health and Ageing, Sixth National HIV Strategy 2010-2013,
[2010] Commonwealth of Australia

John Godwin, Sex Work and the Law in Asia and the Pacific *2012+ UNDP

Kane Matthews and Scarlet Alliance, The National Needs Assessment of sex workers who live with
HIV *2008+ Scarlet Alliance

National Association of People Living with HIV, The Criminalisation of People Living with HIV *2009+

M Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary[2005]
NSW Department of Health, STI Strategy Environmental Scan, *2006+