Western Australian Numbered Acts Western Australian Numbered Acts Before Part 4 the
following is inserted —
“
21A. Obligations, in relation to children,
of those who operate sexual service business
(1) A person who
operates a sexual service business must ensure that a child is not employed or
engaged as a sex worker in the business.
(2) An offence under
subsection (1) is a crime.
Penalty: Imprisonment for 5 years.
Summary conviction penalty: Imprisonment for
3 years.
(3) A person who
manages or operates a sexual service business must ensure that no child is
present at a place at or from which the business is carried on.
Penalty:
(a) for
a first offence, a fine of $24 000;
(b) for
a second or subsequent offence, imprisonment for 3 years.
(4) A person who
operates a sexual service business must not employ or engage a person as a sex
worker in the business unless that person provides evidence to the person
operating the business that the person is not a child by one of the following
means that bears a photograph of the person and indicates by reference to the
person’s date of birth or otherwise that the person has reached
18 years of age —
(a) a
current passport;
(b) a
current Australian driver’s licence;
(c) a
prescribed document.
Penalty:
(a) for
a first offence, a fine of $24 000;
(b) for
a second or subsequent offence, imprisonment for 3 years.
(5) A person who
receives evidence under subsection (4) must —
(a) make
a copy of the evidence; and
(b) make
a record of when the evidence was provided and to whom the evidence was
provided; and
(c) keep
the copy of the evidence and the record for a period of 3 years from the
day on which the evidence was copied or the record made.
Penalty:
(a) for
a first offence, a fine of $24 000;
(b) for
a second or subsequent offence, imprisonment for 3 years.
Part 3A — Sexual service business
Division 1 — Requirement for certificate
21B. Those who must hold a certificate
(1) A person must not
operate a sexual service business unless that person holds an operator’s
certificate.
Penalty: Imprisonment for 3 years.
(2) A person must not
manage a sexual service business unless that person —
(a)
holds a manager’s certificate; or
(b) is
an individual who holds an operator’s certificate.
Penalty: Imprisonment for 3 years.
(3)
Subsections (1) and (2) do not apply to an individual sex worker or
a small owner-operated business.
Division 2 — Manager’s or operator’s
certificate
21C. Who may apply for a certificate or renewal
(1) An applicant for a
manager’s certificate or for the renewal of a manager’s
certificate must be an individual.
(2) An applicant for
an operator’s certificate or for the renewal of an operator’s
certificate must be an individual or a proprietary company, the shareholders
of which are all individuals.
An application for a
manager’s or operator’s certificate or the renewal of such a
certificate must —
(a) be
made to the CEO in a form approved by the CEO; and
(b) be
accompanied by any document or information specified in the form for either or
both of the following —
(i)
verifying the background and reputation of the applicant;
(ii)
relating to a matter referred to in section 21G;
and
(c) in
the case of an application for an operator’s certificate, state the name
and address of any other person with whom the applicant will operate a sexual
service business; and
(d) in
the case of an application for an operator’s certificate, the location
of the place at or from which the applicant’s sexual service business is
to be carried on; and
(e) be
accompanied by the prescribed fee (if any).
21E. Further information relevant to application
(1) An applicant for a
certificate or the renewal of a certificate must provide the CEO with any
additional document or information that the CEO requires, in any particular
case, that is or could be relevant to making a decision on the application.
Penalty: a fine of $6 000.
(2) If the CEO
requires under subsection (1) that an additional document or information
be provided, the CEO does not have to consider the application, or consider it
further, until the applicant complies with the requirement.
21F. Report and information provided by
Commissioner of Police
(1) The CEO must send
a copy of the application to the Commissioner of Police for a report on the
eligibility of the applicant for a certificate or the renewal of
a certificate.
(2) The Commissioner
of Police must provide a report to the CEO within 4 weeks of receipt of
the copy of the application or such longer period as is agreed between the
Commissioner and the CEO.
(3) The Commissioner
of Police may in writing direct the CEO not to communicate or divulge to any
other person any information to which this subsection applies and specified in
the direction that the Commissioner considers —
(a)
might prejudice the safety of a person; or
(b)
might prejudice the effectiveness of an investigation or the prosecution of a
person for an offence; or
(c)
might reveal the identity of an informant; or
(d)
might reveal confidential police practices or methodology; or
(e)
might otherwise be contrary to the public interest.
(4)
Subsection (3) applies to the following information —
(a)
information in a report provided under subsection (2);
(b)
information otherwise provided to the CEO by the Commissioner of Police about
a manager, operator or the operation of a sexual service business.
(5) Subject to the
State Administrative Tribunal Act 2004 section 24, the CEO must
comply with the direction.
(6)
Subsections (3) and (5) apply despite the Freedom of Information
Act 1992 .
21G. Restrictions on who can have a certificate
(1) The CEO may issue
a certificate to, or renew the certificate of, an applicant if satisfied that
the applicant —
(a) is
an individual who has reached 18 years of age; and
(b) has
no charge pending of an alleged offence under the law of this State, the
Commonwealth, another State or a Territory that involves an act of violence
against the person or involves a victim who was a child or incapable person;
and
(c) has
not been declared under the Misuse of Drugs Act 1981 section 32A to
be a drug trafficker; and
(d) has
not been found guilty of an offence described in Schedule 2; and
(e) has
not been found guilty of an offence under the law of the Commonwealth, another
State or a Territory, that the CEO considers to be substantially similar to an
offence described in Schedule 2; and
(f) has
not been convicted, in this or another State or a Territory, of any indictable
offence, including an offence under a law of the Commonwealth, any other State
or a Territory, that is triable by jury that the CEO considers would make it
inappropriate for the CEO to issue the certificate; and
(g) has
not had a certificate issued under this Act to the applicant revoked within
the period of 5 years before the application is made; and
(h) is
not the subject of a violence restraining order within the meaning given in
the Restraining Orders Act 1997 section 3; and
(i)
is otherwise of good character and is a fit and proper
person to hold a certificate; and
(j) is
ordinarily resident in Western Australia and —
(i)
is permanently resident in Australia; or
(ii)
is an Australian citizen;
and
(k)
complies with any other prescribed matter.
(2) If an application
for an operator’s certificate or the renewal of an operator’s
certificate is made by a proprietary company, the CEO may issue a certificate
or renew the certificate if satisfied, with respect to each person who is an
officer of the company, of any matter referred to in subsection (1)(a)
to (k) of which the CEO would need to be satisfied if that person were
the applicant.
(1) A certificate may
be issued or renewed for a period not exceeding one year.
(2) The duration of a
certificate must be stated in the certificate.
(3) If a certificate
is renewed after, but within 28 days of, the day on which it expired, the
renewal is to be taken for all purposes to have taken effect on the day
immediately after the day on which the certificate expired.
21I. Register of certificate holders
The CEO is to keep an
accurate and up-to-date register of all present and former certificate holders
in such manner and form as the CEO determines and in respect of each
certificate holder is to record —
(a) the
name of the certificate holder; and
(b) the
business, or other, address of the certificate holder; and
(c) in
the case of an operator, the name and address of any other person with whom
the operator operates the operator’s sexual service business; and
(d) in
the case of an operator, the location of the place at or from which the
operator’s sexual service business is being carried on; and
(e)
details of the suspension or revocation of a certificate of the certificate
holder under section 21N; and
(f) such
other information, if any, as is prescribed by the regulations.
(1) The register must
be available for inspection by an officer during normal office hours.
(2) The register may
be made available electronically for inspection by an officer.
(3) An officer may, on
application to the CEO in respect of the register or an entry in the register,
and payment of the fee prescribed by the regulations, if any, obtain a
certified copy of the register or the entry.
(4) No fee is payable
under subsection (3) if the application is made by a police officer for
the purpose of performing a function of a police officer under this Act.
(5) In this
section —
“officer” means —
(a) a
police officer; or
(b) a
person of a class specified in the regulations for the purposes of this
definition.
(1) A certificate that
is issued or renewed is to contain prescribed particulars.
(2) The CEO must give
the certificate holder a new certificate if the CEO renews a certificate.
(3) The CEO may, on
payment of the prescribed fee, if any, issue a certified copy of a certificate
to the holder of the certificate.
21L. Display of certificate by operator or manager
(1) A manager of a
sexual service business that is being carried on at or from a place must
ensure that the manager’s current certificate or a certified copy of the
certificate is displayed at the place when the manager is managing the
business so that it is visible to a person on entering the place.
Penalty: a fine of $12 000.
(2) An operator of a
sexual service business that is being carried on at or from a place must
ensure that the current certificate of every operator of the business or a
certified copy of the certificate is displayed at the place so that it is
visible to a person on entering the place.
Penalty: a fine of $12 000.
(3) A person must not
alter or deface a certificate.
Penalty: a fine of $12 000.
Division 3 — Suspension or revocation of certificate
(1) The CEO may for
the purposes of determining whether or not a certificate should be suspended
or revoked —
(a)
require a person to produce to the CEO any document or other thing concerning
the determination that is in the possession or under the control of the
person; and
(b)
inspect any document or other thing produced to the CEO and retain it for such
reasonable period as the CEO thinks fit, and make copies of a document or any
of its contents; and
(c)
require a person —
(i)
to give the CEO such information as the CEO requires; and
(ii)
to answer any question put to that person,
in relation to the
determination.
(2) A requirement made
under subsection (1)(a) —
(a) must
be made by notice in writing given to the person required to produce the
document or other thing; and
(b) must
specify the time at or within which the document or other thing is to be
produced; and
(c) may,
by its terms, require that the document or other thing required be produced at
a place and by means specified in the requirement; and
(d)
where the document required is not in a readable format, is to be treated as a
requirement to produce —
(i)
the document itself; and
(ii)
the contents of the document in a readable format.
(3) A requirement made
under subsection (1)(c) —
(a) may
be made orally or by notice in writing served on the person required to give
information or answer a question, as the case may be; and
(b) must
specify the time at or within which the information is to be given or the
question is to be answered, as the case may be; and
(c) may,
by its terms, require that the information or answer required —
(i)
be given orally or in writing; or
(ii)
be given at or sent or delivered to a place specified in
the requirement; or
(iii)
in the case of written information or answers be sent or
delivered by means specified in the requirement; or
(iv)
be verified by statutory declaration.
(4) If under
subsection (1)(a) the CEO requires a person to produce any document or
other thing concerning the determination that is in the possession or under
the control of the person, the CEO is to inform that person that the person is
required under this Act to produce the document or thing.
(5) If under
subsection (1)(c) the CEO requires a person to give information or answer
a question, the CEO is to inform that person that the person is required under
this Act to give the information or answer the question.
21N. Suspension or revocation of a certificate
(1) The CEO may by
notice given to a certificate holder revoke the holder’s certificate
if —
(a) the
CEO —
(i)
is no longer satisfied as to any matter about which the
CEO would be required to be satisfied before issuing the certificate; or
(ii)
comes to know of any other matter that would prevent the
CEO from issuing the certificate if an application were only then being made
for it;
and
(b) the
CEO has informed the certificate holder that the CEO is considering revoking
the certificate and given the certificate holder a reasonable opportunity to
be heard or make written representations.
(2) The CEO may by
notice given to a certificate holder suspend the holder’s certificate
for a period specified in the notice if the CEO has informed the certificate
holder that the CEO is considering suspending or revoking the certificate, as
is applicable to the case, and given the certificate holder a reasonable
opportunity to be heard or make written representations.
Division 4 — Conducting a sexual service business
21O. Operator or manager must be present
(1) A person who
operates a sexual service business at or from a place must ensure that an
operator of the business who is an individual or a manager of the business is
present at the place at all times during which the business is being carried
on at or from the place.
Penalty:
(a) for
a first offence, a fine of $24 000;
(b) for
a second or subsequent offence, imprisonment for 3 years.
(2)
Subsection (1) does not apply to an individual sex worker or a small
owner-operated business.
21P. Sex worker must be an employee or contractor
(1) A person who
manages or operates a sexual service business must ensure that a person does
not act as a sex worker in the business unless —
(a) the
person has entered into a contract of service with, or been engaged to work
for the purposes of the business under a contract for service by, a person who
operates the business; and
(b)
whenever acting as a sex worker in the business, the person is acting in the
course of the person’s employment or engagement under that contract.
Penalty: a fine of $50 000.
(2) This section
applies to a person who acts as a sex worker in a sexual service business
whether or not the person is also an individual sex worker.
(3)
Subsection (1) does not apply to an individual sex worker or a small
owner-operated business.
21Q. Sexual service business not to operate at or
from licensed premises
A person must not
operate a sexual service business at or from licensed premises within the
meaning given in the Liquor Control Act 1988 section 3(1).
Penalty: a fine of $50 000.
21R. One small owner-operated business to operate
from premises
A person must not
operate a small owner-operated business at or from premises at or from which
another sexual service business is operating.
Penalty: a fine of $50 000.
Division 5 — Protection of sex workers and clients
21S. Obligations of operators and managers
(1) A person who
manages or operates a sexual service business must —
(a) take
all reasonable steps to ensure that a sex worker employed or engaged by the
business does not take part in a commercial sexual act unless a prophylactic
sheath or other appropriate barrier is used if the act involves vaginal, anal
or oral penetration or another activity with a similar or greater risk of
acquiring or transmitting a prescribed infection or virus; and
(b) take
all reasonable steps to give health information (whether oral or written) to
sex workers and clients of the business; and
(c)
display health information prominently in any place at or from which the
business is carried on; and
(d) not
state or imply that a medical examination of a sex worker employed or engaged
by the business means that the sex worker is not infected, or likely to be
infected, with a prescribed infection or virus; and
(e) take
all other reasonable steps to minimise the risk of a sex worker employed or
engaged by or a client of the business acquiring or transmitting a prescribed
infection or virus; and
(f)
display information prominently in any place at or from which the business is
carried on regarding the right of a sex worker to refuse to take part in, or
continue to take part in, a sexual act.
Penalty: a fine of $12 000.
(2) In this
section —
“health information” means information
on sex practices and services for the prevention and treatment of a prescribed
infection or virus.
21T. Prevention of penetrative sex if infected
(1) A person who
manages or operates a sexual service business must not permit or encourage a
person to act as a sex worker and engage in acts involving vaginal, anal or
oral penetration, including cunnilingus, if the first-mentioned person knows,
or could reasonably be expected to know, that the person has a prescribed
infection or virus.
Penalty: Imprisonment for 2 years.
(2) A person charged
with an offence under subsection (1) has a defence if it is proved that
the person exercised all due diligence as ought to have been exercised having
regard to the nature of the person’s functions and to all the
circumstances to prevent a person whom the person charged knows, or could
reasonably be expected to know, has a prescribed infection or virus from
acting as a sex worker in the sexual service business.
21U. Prophylactic sheath to be provided for use
A person who manages
or operates a sexual service business must give a prophylactic sheath free of
charge to a client and a sex worker for use when taking part in a commercial
sexual act at the sexual service business.
Penalty: a fine of $12 000.
21V. Entry by police officer for certain purposes
(1) If a police
officer has a reasonable suspicion —
(a) that
a place is not a residence; and
(b) that
a sexual service business that is not a small owner-operated business is being
carried on at or from the place,
the officer may enter
the place to ensure that —
(c) an
operator or a manager of the business has a certificate; or
(d) an
operator or a manager of the business is present at the place; or
(e) a
certificate or a certified copy of the certificate of an operator or a manager
of the business is displayed at the place so that it is visible to a person on
entering the place.
(2) If a police
officer enters a place under subsection (1), the police officer may
require a person apparently operating or managing a sexual service business at
or from the place to give the officer his or her name and address and provide
proof of his or her identity.
Division 7 — Review by State Administrative Tribunal
(1) A person who is
aggrieved by a decision of the CEO —
(a) to
refuse to issue or renew a certificate; or
(b) to
suspend or revoke a certificate,
may apply to the State
Administrative Tribunal for a review of the decision.
(2) The Commissioner
of Police is a party to a review.
(3) Despite the
State Administrative Tribunal Act 2004 section 61, if information
is specified in a direction under section 21F(3), the CEO or the
Commissioner of Police may apply to the State Administrative Tribunal for an
order that the information is not to be disclosed to the applicant, the
applicant’s representative or any other person.
(4) The Tribunal is to
make an order under subsection (3) if it is satisfied that disclosure of
the information —
(a)
might prejudice the safety of a person; or
(b)
might prejudice the effectiveness of an investigation or the prosecution of a
person for an offence; or
(c)
might reveal the identity of an informant; or
(d)
might reveal confidential police practices or methodology; or
(e)
might otherwise be contrary to the public interest.
(5) The
State Administrative Tribunal Act 2004 section 61(3) applies to an
order under subsection (4) as if a reference in section 61(3) to
subsection (2) were a reference to subsection (4) of this section.
(6) An application
under subsection (3) may be made without notice to the applicant and may
be heard and determined in the absence of the applicant.
(7) The hearing by the
Tribunal of an application under subsection (3) is not to be held in
public and the Tribunal may order that no person is to be in the room or place
without the Tribunal’s permission.
(8) For the purposes
of the State Administrative Tribunal Act 2004 , information in respect
of which an order is made under subsection (4) is protected matter.
Division 8 — Planning and development controls
21X. Approvals for existing well managed places
(1) If land was being
used for the purpose of a sexual service business (other than a small
owner-operated business) immediately before 12 September 2006 and
continued to be used for that purpose up to and including the day on which the
Prostitution Amendment Act 2008 section 1 came into operation, the use
of the land, subject to the approval of the CEO, for that purpose is a use
permitted by the planning scheme or interim development order relating to the
land.
(2) An application for
the approval of the CEO under subsection (1) is to be made in the
prescribed manner.
(3) In considering an
application for approval under subsection (1) the CEO is to liaise with
the local government of the district in which the land is located and the
Commissioner of Police and is to have regard to —
(a)
whether the manner of the use of the land for the business has been the
subject of complaints before 12 September 2006 from residents or
occupiers in the area; and
(b)
whether the operation of the business causes, or is likely to cause, a
disturbance in the neighbourhood when taking into account the number of sex
workers working in the business, its hours of operation, the noise and
vehicular and pedestrian traffic; and
(c)
whether the operation of the business interferes, or is likely to interfere,
with the amenity of the neighbourhood.
(4) The CEO is to give
approval under subsection (1) unless, after having regard to the matters
referred to in subsection (3), the CEO is satisfied that the business is
not being managed appropriately.
(1) If a development
application within the meaning given in the
Planning and Development Act 2005 section 4(1) is made to a
responsible authority for the development of land for the purpose of a sexual
service business, the authority must —
(a)
consider the application as if that purpose is a use that is not permitted
unless the responsible authority has exercised its discretion by granting
planning approval; and
(b) in
exercising its discretion, also have regard to whether the
business —
(i)
is likely to cause a nuisance to ordinary members of the
public using the area in which the land is situated; and
(ii)
is incompatible with the existing character or use of the
area in which the land is situated.
(2)
Subsection (1) does not limit or affect the operation of the
Planning and Development Act 2005 in any way, and the subsection may be
overridden by a provision of a planning scheme or interim development order.
21Z. False or misleading information
(1) A person must not
do any of the things set out in subsection (2) —
(a) in
relation to an application under this Part; or
(b) in
relation to the compliance, or purported compliance, with a requirement under
section 21E(1) to give the CEO a document or information.
Penalty: a fine of $24 000 or imprisonment
for 2 years.
(2) The things to
which subsection (1) applies are —
(a)
making a statement which the person knows is false or misleading in a material
particular; or
(b)
making a statement which is false or misleading in a material particular, with
reckless disregard as to whether or not the statement is false or misleading
in a material particular; or
(c)
providing, or causing to be provided, information that the person knows is
false or misleading in a material particular; or
(d)
providing, or causing to be provided, information that is false or misleading
in a material particular, with reckless disregard as to whether the
information is false or misleading in a material particular.
21ZA. Offences in relation to determination under
section 21M
(1) Where under
section 21M a person is required to give any information, answer any
question, or produce any document or thing and that person, without reasonable
excuse (proof of which lies on the person) —
(a)
fails to give that information or answer that question at or within the time
specified in the requirement; or
(b)
gives any information or answer that is false in any particular; or
(c)
fails to produce that document or thing at or within the time specified in the
requirement,
the person commits an
offence.
Penalty: a fine of $24 000 or imprisonment
for 2 years.
(2) It is a defence in
any proceeding for an offence under subsection (1)(a) or (c) for the
accused to show —
(a)
that, in the case of an alleged offence arising out of a requirement made
orally under section 21M, the CEO did not, when making the requirement,
inform the accused that he or she was required under this Act to give the
information or answer the question, as the case may be; or
(b)
that, in the case of an alleged offence arising out of a requirement made by
notice in writing under section 21M, the notice did not state that he or
she was required under this Act to give the information, answer the question,
or produce the document or thing, as the case may be; or
(c) that
the time specified in the requirement did not afford the accused sufficient
notice to enable him or her to comply with the requirement; or
(d)
that, in any case, the CEO did not, before making the requirement, have
reasonable grounds to believe that compliance with the requirement would
assist the CEO in making the determination.
21ZB. Incriminating information, questions or
documents
An individual is not
excused from complying with a requirement under section 21M on the ground
that the answer to a question or the production of a document or other thing
might incriminate the individual or render the individual liable to a penalty,
but neither —
(a) an
answer given by the individual that was given to comply with the requirement;
nor
(b) the
fact that a document or other thing produced by the individual to comply with
the requirement was produced,
is admissible in
evidence in any civil or criminal proceedings against the individual other
than proceedings for an offence against section 21ZA(1)(b).
21ZC. Obstruction of police officer
(1) A person must not
prevent or attempt to prevent —
(a) a
police officer from entering premises under section 21V(1); or
(b)
otherwise obstruct or impede a police officer in the exercise of his or her
powers under section 21V(1).
(2) If required under
section 21V(2) by a police officer to give the officer his or her name
and address or provide proof of his or her identity, a person must not fail to
give the officer his or her name and address or provide proof of his or her
identity.
Penalty: a fine of $24 000 or imprisonment
for 2 years.
21ZD. CEO to be notified of certain matters
(1) An operator of a
sexual service business must give the CEO notice in writing of any notifiable
matter within 7 days after becoming aware of the matter.
Penalty: a fine of $24 000 or imprisonment
for 2 years.
(2) In
subsection (1) —
“notifiable matter” means —
(a) a
charge of the commission of an offence under this Act being made
against —
(i)
an operator or a manager of the business; or
(ii)
if a proprietary company is an operator of the business,
the company or any officer of the company;
or
(b) a
charge of the commission of an indictable offence being made
against —
(i)
an operator or a manager of the business; or
(ii)
if a proprietary company is an operator of the business,
the company or any officer of the company;
or
(c) if a
proprietary company is an operator of the business, a person ceasing to be an
officer of the company or a person, not already an officer of the company,
becoming an officer of the company; or
(d) a
change in the name or address of any other person with whom the operator
operates a sexual service business; or
(e) the
name and address of any other person with whom the operator begins to operate
a sexual service business; or
(f) a
change in the location of the place at or from which the operator’s
sexual service business is being carried on; or
(g) the
name and address of any person who exercises or exerts, or is in a position to
exercise or exert, control or substantial influence over the manner in which
the operator’s sexual service business is conducted.
”.