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Last week was the deadline for public submissions on potential reforms to the Tasmanian Sex Industry Offences Act 2005 in response to the Government’s Discussion Paper:  Review into the Sex Industry in Tasmania 2012.

This poorly disguised Discussion Paper is nothing more than a Directions paper which asks the public to ‘vote’ for one of three different models of legislation.

This Directions Paper is appallingly biased, misleading and flawed. It amounts to nothing more than sham polling. The Government hopes that the ‘votes’ cast in response will give them the ‘social licence’ to fast track legislation that was previously rejected by the Legislative Council in 2005.

The paper omits to include the basis for the philosophical and policy perspectives that underpin the different models. The bias is shown by the great lengths the Directions Paper takes to single out for criticism the Swedish model while excluding any criticism of other models including its own preferred option. There is no mention of the major expansion to both legal and especially illegal sectors in the sex industry in all other jurisdictions who have taken a legalisation approach. The list of criticisms of the Swedish model amount to nothing more than bogus fantasies about a model that has been successful with its intended aims.


In addition, key words, like ‘belief’ and ‘presumption’ have been deployed specifically to undermine and devalue the views of those who support the philosophical and policy basis which underpins the Swedish model. The paper goes on to imply that the Swedish model is not evidenced based and only motivated by ‘idealogical and moral’ perspectives.

The paper omits to mention the Swedish model has also been implemented in Iceland, Norway and South Korea.  The Israeli Senate has passed the first reading of this model and Boston in the US is also modeling their new laws on the Swedish model as are the French.  It has been suggested Cuba is also looking to follow suit. The impact of sex trafficking and it’s connections with legal and illegal sectors of the sex industry globally has highlighted in many countries in Europe and South East Asia the need for a progressive new legislative approach that will tackle these issues from the perspective of gender inequality.

The Paper has relied heavily on views expressed by the Prostitution Licensing Authority in Queensland which has used repeatedly discredited research by Petra Ostergren. Copycat shortcuts are not what the public’s taxes are intended to pay public servants to do in producing Discussion Papers on options for important pieces of legislative reform such as this.

The Tasmanian Integrity Commission Act 2009 and Public Interest Disclosure Act 2005 are two good examples of why copycat legislation won’t work for any new laws for the sex industry in Tasmania. The Whistleblower protection laws have never worked in Tasmania and it is no wonder, as a result, that the Integrity Commission has been unable to find any systemic corruption in the Tasmanian Government.

While public debate around reform to the sex industry will continue to be polarised, the Government’s capacity to restrict discussion, to peddle misleading information and conduct sham polls through bogus discussion papers exposes just how far politicisation of the public sector has progressed in this state.

It is unacceptable that this Government has attempted to subvert proper community consultation process’s and manipulate public opinion through this Discussion Paper.

The Attorney General Brian Wightman and public servants in his Department have their salaries paid for by the taxpayer and need to be accountable for their actions. The Directions Paper fails to show any due diligence to present the arguments for all the various options available.

Aside from Whistleblowers Tasmania’s own view on the best legislative approach to take, we are appalled at this fake ‘Discussion Paper’. We consider that it is in the public interest for the Tasmanian Law Reform Institute to conduct an independent community consultation process, report on the communities views and opinions and include a thorough discussion on the philosophical and policy perspectives underpinning the various legislative approaches. Only then, can the general public provide an informed input to any government consideration for a ‘social licence’ for expansion of the sex industry in Tasmania.

• Submission on potential reforms to the Sex Industry Offences Act 2005.
From Whistleblowers Tasmania 23rd March 2012

Response to the Directions Paper:  Review into the Sex Industry in Tasmania 2012

‘When men’s belts and shoelaces and ties and cigarette lighters have to be confiscated at the door, when lamps and phones can’t have cords, johns who want to use those for sex – and they do – have to go elsewhere…..’
The upshot is, far from making life safer, across-the-board decriminalisation can make it even more dangerous, and certainly no less so, for those women who have the fewest options to begin with.’

Catharine MacKinnon
Trafficking, Prostitution and Inequality Harvard Civil Rights Civil Liberties Law Review [Vol 46]

THE DIRECTIONS PAPER IS A FLAWED AND BIASED DOCUMENT

Whistleblowers Tasmania wrote to the Attorney General Brian Wightman on the 13th February 2012 asking that he request the Tasmanian Law Reform Institute (TLRI) to produce an independent Report on Prostitution and alternative policy and legal frameworks. 

Although we received no reply from Brian Wightman he responded to our request in an article on the issues in the Tasmanian Mercury on 13 March 2012. The article stated that he had ‘ruled out ’ our request and that he said“ “Given the extensive review previously undertaken and the current consultation, I don’t currently see a need to refer the matter to the Tasmanian Law Reform Institute for further consideration.”  The article went on to say that ‘...Former Labor attorney-general Judy Jackson introduced a Bill to legalise brothels in 2004 before it was watered down when it got to the Legislative Council.’

We had written to the Attorney General Brian Wightman because we were dissatisfied with the Directions Paper produced by his Department.  The Directions Paper contains flawed terminology, targets one particular legal framework for criticism, omits important references to international reviews, research and new legal approaches which are essential for public consideration of the options for policy and legal frameworks.  In addition, there is no discussion in the report about the different philosophical underpinnings that have been used in policy development for different legal frameworks. As a consequence the Directions Paper is a biased document clearly advocating for the overturning of the Sex Industry Offences Act 2005 and the reintroduction of legislation more based on Judy Jackson’s 2004 Bill.

The Report produced by the TLRI ‘A Charter of Rights for Tasmania’ Final Report No 10 October 2007 is the type of report that is necessary to inform public discussion on the issues of prostitution and the philosophical underpinnings to policy and legal frameworks that might be used in Tasmania.

Included in a TLRI report will need to be Human Rights Impact Statements for the various legal frameworks.


In ‘A Charter of Rights for Tasmania’ Part 4 ‘What model of human rights should Tasmania adopt? ...The Tasmanian Law Reform Institute’s view’ it states:


‘Recommendation 13 - Role of the Executive
The Tasmanian Law Reform Institute recommends that processes be developed to ensure that all policy formulation is undertaken in a manner that takes account of human rights.  Accordingly, the Institute recommends that Human Rights Impact Statements be prepared in relation to all policy and
legislation proposals and that these statements be provided to Cabinet to ensure that the Government is aware of the human rights implications of all new proposals.’

and .....

4.14.18 For the purpose of a Tasmanian Charter, the Tasmanian Law Reform Institute is of the view that only those rights that are not subject to limitations or qualifications in the International Covenant on Civil and Political Rights should be considered to fall within the concept of truly absolute rights.  These rights are the right to recognition as a person before the law, freedom from slavery, genocide, torture and cruel, inhuman or degrading treatment or punishment and retrospective criminal
punishment.’

The Tasmanian community have a ‘right to know’ what these Human Rights Impact Statements will include before being asked to ‘vote’ for any legislative approach as a response to a flawed and misleading Directions Paper.


LEGALISATION HAS NO ‘SOCIAL LICENCE’ FROM COMMUNITY

‘State parties that maintain legalised prostitution industries have a
heavy responsibility to ensure that….(they) are not simply perpetuating
widespread and systemic trafficking…...For the most part, prostitution as actually practiced in the world usually does satisfy the elements of trafficking.  It is rare that one finds a case in which the path to prostitution and/or a person’s experiences within prostitution do not involve at the very least, an abuse of power and or an abuse of vulnerability.  Power and vulnerability in this context must be understood to include power disparities based on gender, race, ethnicity and poverty.  Put simply, the road to prostitution and life within ‘the life’ is rarely one marked by empowerment or adequate options.’

Sigma Huda, the UN Special Rapporteur
on Trafficking (2004-2008)(UN Doc.E/CN.4/2006/62
Feb 20. 2006)


In 2005 the Legislative Council decided not to support the Government’s 2004 bill and it was ‘watered down’. Some members of the Legislative Council had acknowledged in their decision not to support this Bill,  the concerns and views from many in the community that a legalisation approach, considering the mounting evidence from other jurisdictions in Australia and internationally,  will only lead to expansion of the legal and especially illegal sectors of the sex industry in Tasmania. The community do not support the exploitation of people, mainly women in the sex industry in Tasmania.

For Government to move down the road to legalisation of the sex industry it will have to show that the community have given it a clear ‘Social Licence’  to do so.  A ‘Social Licence’ takes into account a society’s needs and well being and how this might be best achieved. In developing a more informed understanding of the philosophy, policy and legal frameworks, the Tasmanian community are not likely to give this ‘Social Licence’ to any Government which will give a green light to expansion of the sex industry. 

The data on socio-economic disadvantage in Tasmania is relevant in this discussion as the precondition for many women entering work in the sex industry stems most often from serious sexual, physical, or emotional abuse in childhood, homelessness, poverty and/or mental health disorders:

Saul Eslake from the Gratton Institute gave the third annual Dorothy Pearce address for the Tasmanian Council of Social Services on 19th October 2005.  In this address, Poverty In Tasmania: An Economists Perspective he said… 

’ Tasmania continues to rank poorly in comparison with other parts of Australia:
• Tasmanians earn 20% less, on average than their mainland counterparts;
• The net worth of Tasmanian households is nearly 31% less, on average, than that of mainland households;
• Fewer than 57% of Tasmanians of working age (15 and over) are employed, compared with nearly 62% of mainlanders, and of those Tasmanians who are employed, 68% have a full-time job compared with over 71% of mainlanders;
• Of those Tasmanians who are unemployed, nearly one-third have been unemployed for more than a year, compared with just over one-fifth of unemployed mainlanders;
• Tasmanian children are more likely to be born to a teenage mother (7.2% of all births) or without an acknowledged father (6.8% of all births outside marriage) than children in any other part of the country except the Northern Territory, are more likely to die in infancy (7.0 per 1 000 live births) than anywhere else except the Northern Territory, are more likely to have a natural parent living elsewhere (29.5% of all Tasmanian children) than anywhere else in Australia (23.3% of all Australian children) and significantly more likely to be living in a household where no resident parent is employed (21.1% of Tasmanian children under 15) than in any other State or Territory;
• Tasmanians are less likely to make it to 70 (76.3% of men and 84.5% of women) than residents of any other State (78.7% of all Australian men and 87.1% of women), are more likely to have a disability (22.6% of Tasmanians) than Australians as a whole (20.0%), and are more likely to commit suicide (15 deaths per 100,000 of Tasmania’s population as against 23 for Australia as a whole);’

What the Tasmanian community want the Government do is to get on with solving the problems for the many seriously socio-economically disadvantaged people in our community rather than provide avenues within the legal and illegal sectors of a sex industry which will keep them poor, disadvantaged and subjected to cruel and inhumane treatment and less able to find safer options to survive.


THE LEGISLATIVE OPTIONS/TERMINOLOGIES ARE FLAWED


The Terminologies used in the Directions Paper are confusing and misleading:

’ PART 1 - Legislative approaches to the sex industry (terminology):
Legislative approaches to the sex industry are generally described in terms of criminalisation, decriminalisation, or licensing….’
‘Criminalisation involves outlawing or prohibiting the sex industry by making sex work a criminal offence for either the client or the sex worker, or both, or by making it a criminal offence to operate a sex industry business. Sex work may be either wholly criminalised: for example in Sweden brothels are prohibited and the purchase of sexual services is a crime, or partially criminalised as is the case in Tasmania, where it is lawful to be a sex worker, but it is an offence to work as a street worker or run a business that employs sex workers.’

The terminology used to describe criminalisation is misleading with regard to the Swedish model. The Swedish model is unique in that selling sex is not a criminal offence but buying or attempting to buy sex is a criminal offence.

Greater than the problem of definitions used in the terminologies is the failure to provide the philosophical and policy rationale underpinning a legislative approach.

Based on these fundamental flaws and deficiencies in the Directions Paper it then asks that ‘Submissions should indicate which regulatory model (decriminalisation, criminalisation or licensing) would be preferable for Tasmania’.

The use of this Directions Paper is a highly unethical and questionable process for the Government to be engaging in an attempt to gather ‘votes’ for their preferred option.


THE DIRECTIONS PAPER IS ‘LOADED’ WITH BIAS


The Government has asked the general public to respond to its Directions Paper with the question ‘Are there any other options for Tasmania which you feel government should consider?’

The authors of the Directions Paper have used words, chosen definitions, selected information or used copycat citations to reinforce the Government’s preferred choice of decriminalisation. This determines what ‘is’ knowledge’ and what is ‘not knowledge’.

Language

Through the use of particular words the Directions Paper has predetermined what the correct philosophical and policy underpinning for any Tasmanian legislation will be. 

On Page 16 it states ‘The Swedish law is based on the belief that prostitution is a form of male sexual violence against women’ and again on Page 17 ’ .....belief that criminalisation is chiefly supplementary….’.

The Macquarie Dictionary defines belief in this context as ‘conviction of the truth or reality of a thing, based on insufficient grounds to afford positive knowledge’ .

It is common to find in Government reports from inquiries or reviews the word ‘belief’. It is routinely used to influence readers and devalue ‘views’ and ‘opinions’ from ‘opponents in this case whose ‘beliefs’ are simply based on as the report states “idealogical and moral” perspectives

Again on Page 16 when attempting to describe the Swedish model it states…..

‘but the underlying philosophy .......The presumption is that the industry is innately an expression of male violence and exploitation of women.’

The use of the word ‘presumption’ is used here in opposition to the Government’s unstated but implied philosophy which is not a based on a ‘presumption’ at all but rather on an ‘objectively’ reached position..

Unlike the Tasmanian Government’s piecemeal approach to the problems of prostitution, Julie Bindell and Liz Kelly have said ‘The Swedish regime is not simply a piece of ideological legislation but a holistic approach to the problems of prostitution’. It is of interest that the Swedish Women’s Sanctuary or Women’s Peace Bill 1998 was only enacted after twenty years of public discussion and debate.

Importantly the Directions Paper fails to include any discussion about the Government’s responsibility to fully fund and resource Exit Programs and the associated services that go with them to support people wanting to get out of the sex industry.  Exit Programs were promised by other Governments in Australia but never materialised.

The criticism of the New Zealand model by Melissa Farley could have been included in the Directions Paper’s detailed considerations of this model:

What Really Happened in New Zealand After Prostitution was Decriminalized in 2003?

1. Violence in prostitution continued after prostitution was decriminalized in New Zealand, according to the New Zealand Law Review Committee.

2. The Report is available at http://www.justice.govt.nz/prostitution-law-review-committee/publications/plrcreport/index.html.

3. Stigma and prejudice against prostitution, and the shame associated with prostitution, continued since decriminalization of prostitution in NZ.

4. Street prostitution in New Zealand’s cities increased dramatically after prostitution was decriminalized in 2003.

5. There is inadequate protection for children against prostitution in New Zealand since decriminalization.
.
5. The US State Department has noted trafficking of women and children since prostitution was decriminalized in New Zealand.

http://www.prostitutionresearch.com/c-laws-about-prostitution.html

The Directions Paper could also have chosen to look at the Report by the German Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes 79 (2007)

‘The Prostitution Act has….up until now….not been able to make actual, measurable improvements to prostitutes’ social protection.  As regards improving [their] working condition, hardly any measurable, positive impact has been observed in practice….The Prostitution Act has not recognisably improved the prostitutes’ means for leaving prostitution.  There are as yet no viable indications that [it] has reduced crime [or] contributed…transparency in the world of prostitution….118

There is an enormous amount of research available on the negative results from many other jurisdictions that have taken a legalisation approach to the sex industry.  Increased sex trafficking and a boom in the illegal sector has been a major consequence in these jurisdictions.

IMPORTANT RESEARCH REFERENCES EXCLUDED

The links and references to information or research provided in the Directions paper are limited to those used to support the Government’s push for legalisation of the sex industry.

There are many useful research papers which are available online that could have been included in the list provided in the Directions Paper if people being well informed about the issues was important for the Government in seeking their ‘vote’.

Just a few that have been especially useful to Whistleblowers Tasmania are:

Bindell, J and Kelly, S, 2003 A Critical Examination of Responses to Prostitution in Four Countries: Victoria, Australia; Ireland; the Netherlands; and Sweden, For the Routes Out Partnership Board.

Waltman, M, Sweden’s prohibition of purchase of sex: The law’s reasons, impact, and potential, Women’s Studies international Forum 34 (2011) 449-474

MacKinnon, K, 2009, 2010, 2011 Trafficking, Prostitution, and Inequality, Harvard Civil Rights-Civil Liberties Law Review Vol 46

In addition there are a number of local, national and international organisations that have excellent data bases for information and links on these issues ie the Coalition Against Trafficking in Women Australia at: http://catwa.org.au/


NO CAPABILITY TO PROPERLY REGULATE THE SEX INDUSTRY

‘Confronting the Australian politics of resignation on prostitution

ACT committee misses opportunity to address harms: ‘normalises prostitution, cuts back on regulation, waters down health safeguards’

ACT Shadow Attorney General Vicki Dunne, in her recent 9 page dissenting view on the ACT Review committee Report, criticised her colleagues of ‘trying to depict prostitution as normal and inevitable’ and therefore failing to take an opportunity to ‘take a fresh look at the harms of prostitution and innovative ways of ameliorate those harms…....... Committee members ‘did not want to engage in…discussion’ about the Swedish model, despite the fact information about its successful implementation in Sweden, Norway, Iceland and South Korea was made available to them…....’

and

‘..... ‘played down’ the ‘significant human rights problems’ that arise in relation to prostitution. They refused, for example, to recognise any criminality in the ACT sex industry, and were ‘unwilling to support…[an] extension of police powers’, even with the death of a 17-year-old girl in a legal Fyshwick brothel in 2008, and a sex trafficking case involving Thai women before the ACT courts…........ heard from ACT Police that no check was done on any brothel in the ACT for a period of five years, but didn’t think to question the government’s ability to oversee the legal sex industry it created in 1992…...

Adherence to ideas about ‘harm minimisation’ in relation to prostitution appear to have led Committee members to believe any form of sex industry regulation to be injurious to women’s ‘right’ to become prostitutes. This line of thinking seriously underestimates the threat posed by the sex industry to the status of women and children, especially when government endorses a business sector that makes profits through organising society’s most vulnerable people to sexually serve men with money.’
Dr Caroline Norma at http://melindatankardreist.com/nkardreist.com/

Tasmanians have seen successive Governments’ failure to provide numerous oversight or regulatory bodies with effective regulatory guidelines and powers for investigations, adequate funding for monitoring and resources and commitment to policing and enforcement for compliance. Many officials working in oversight bodies, ie Children’s Commissioner, Ombudsman,  Anti-Discrimination Commissioner, Chairman and expert witnesses with the Resource Planning and Development Commission or the Integrity Commission, have at one time or another, spoken out about the need for more powers, resources and funding or against attempts at interference by Government with their independent role or functions.

In addition, the Workplace Standards Authority, Department of Health and Human Services, Child Protection Services, Hospitals and Tasmania Police have recently suffered a raft of serious cutbacks in funding and staffing levels, which has also impacted on training, and has left these public good services in a critical and potentially dangerous state for the health and safety of both public sector employees and the general public.

The Tasmanian Government is not in a position to allocate funds from the cash strapped State Budget to fund any new services that will be required with an expansion of the legal and illegal sectors of the sex industry in Tasmania.


THE PROBLEM OF COPYCAT LEGISLATION


The Tasmanian community have already seen the failure of copycat legislation with problems in the Public Interest Disclosure Act 2002(whistleblower protection laws) and Integrity Commission Act 2009(anti-corruption laws). Much within these Acts was based on ‘repeatedly’ flawed and unworkable legislation from other states.

The Directions Papers targeted the Swedish model with a detailed critique of their laws but failed to include any critique at all for other jurisdictions that had opened the gates to a legalised sex industry.

The Tasmanian Government’s Directions paper has relied heavily on the recent submission of the Queensland Prostitution Licensing Authority to the Crime and Misconduct Commission‘s review of the Queensland Prostitution Act . The review included a detailed critique of the Swedish model at Appendix 2.28 and is found at:  http://www.cmc.qld.gov.au/asp/index.asp?pgid=10911


Some of this critique is based on the now discredited work of Petra Ostergren. Max Waltman said:
‘The fact that Ostergren as well as other sources of biased information have so often been uncritically cited without noticing their obvious flaws, particularly outside Sweden, is symptomatic.  Prostitution is a powerful industry supported by apologists such as researchers and social commentators, who in turn influence public opinion whether there information is accurate or not.  This also happened to the 1985 Attorney General’s Commission on Pornography in the U.S., which was surrounded by false rumours that were repeatedly parroted in the media until they became so-called conventional wisdom (see, e.g., MacKinnon, 1997, 14, 21-22; McManaus, 1986, xlv-xlviii)


Whistleblowers Tasmania do not support the Government’s fast tracking of any new legislation that will give the green light to expansion of the legal and illegal sectors of the sex industry in Tasmania.


Whistleblowers Tasmania support the approach taken by the Swedish model. We urge the Tasmanian Government to think before they sanction and promote any legislation of the sex industry which will inevitably cause more already disadvantaged and poor women, children and men to be subjected to violence from mainly men in Tasmania.

It remains our view that the Government needs to ask the Tasmanian Law Reform Institute to produce a Report on issues regarding prostitution including the underpinning philosophical and policy aspects for the various legislative approaches. As with the Report ‘A Charter of Rights for Tasmania’,  this Report needs to be widely disseminated in the community prior to any public consultations being held in all regions of the state.  Any new legislative approach to prostituted persons or the sex industry in Tasmania needs to be supported by a Social Licence from the community.


Or, Download: Whistleblowers Tasmania’s Submission to Review of the Sex Industry in Tasmania:
WBT_Submission_to_Tasmanian_Seex_Industry_Review.doc