Phone – 02 96960 0551
Fax – 02 6960 1013
PO Box 2167
Strawberry Hills NSW 2012
Suite 9, 245 Chalmers Street, Redfern
Email –
Web –
Attorney-General’s Department
28 February 2012
Dear Attorney-General’s Department,
Submission on the National Human Rights Action Plan Exposure Draft
We were extremely disappointed to find that sex worker human rights are not referenced at all in the National Human Rights Action Plan or the Baseline Study. This is a grave omissionwhich is decades behind global health and human rights policy.
Sex workers, as recognised by the Australian Government and globally as a community affected by HIV, experience unacceptable levels of discrimination and denial of human rights.
Despite this, the final Baseline Study includes zero references to ‘sex work’. The only references are to the ‘sex industry’ (in relation to trafficking) and ‘child prostitution’ (in relation to child sex offences and child pornography). The Exposure Draft lists ten groups who are ‘particularly vulnerable to disadvantage and human rights abuses’. There is no reference to sex workers.
While we welcome the introduction of a discrimination category to protect people on the basis of ‘sexual orientation and/or gender identity’, we note that this insufficient to protect sex workers. The categorydoes not appear to cover sex workers or people who experience discrimination because of their sexual attraction, sexual identity orsexual behaviour.
Furthermore, the term ‘human rights’ is not mentioned once in the Action Plan section on ‘People Trafficking.’ Despite UN Committees’ recommendations for Australia to take a human rights approach to trafficking, the Baseline Study and Action plan pay lip service only to human rights. None of the Action Plan strategies include any preventative or human rights components. There are no strategies for visa reform to allow for safe migration and eliminate the need to engage third-party agents to travel. There are no initiatives to translate visa conditions and important resources into multiple languages. There is no plan to improve migrant workers’ access to industrial rights mechanisms (instead there is a refusal to ratify the Migrant Workers Convention). There is no reference to existing remedies available that provide better outcomes for victims. The only support available to migrant sex workers remains conditional upon police assistance and contribution to a criminal investigation. There is no recognition that police are inappropriate regulators for the sex industry, due to evidence of systemic corruption that affects sex workers’ willingness to engage with police in the event of a crime. Instead, the Action Plan investsheavily in a criminal justice approach which has been demonstrated to curtail the human rights of migrant sex workers, and hinder our access to essential health and support services.
These omissions will have severe consequences for the human rights, health and safety of Australian sex workers, including migrant sex workers. In wilfully ignoring the recommendations of UN bodies and global health organisations, Australia is turning its back on one of this country’s most stigmatised and marginalised populations. The Government is effectively endorsing the continuing criminalisation of and discrimination towards sex workers, despite a timely and once-in-a-lifetime opportunity to end it.
You will be aware that Scarlet Alliance has previously provided submissions to the Government about these issues for the National Human Rights Consultation 2009, Baseline Study 2011, Criminal Code Amendments 2011 and Anti-Discrimination Consolidation Process 2011. These submissions illustrate that human rights intersect with sex worker rights in complex ways and numerous areas.
These submissions outline the ways in which sex workers experience discrimination on the basis of occupation, HIV statusmigrant status and sexual activity, in access to goods and services, housing and accommodation, employment opportunities and access to justice. They explain the ways in which our human rights to free choice of employment, right to just and favourable conditions of work, right to freedom of movement and right to freedom of association are regularly and systemically denied by the criminalisation of our workplaces, barriers to occupational health and safety, limited access to legal remedies, restrictions on international travel, restrictions on our mobility across sectors of the industry, pressure to re-locate to areas that pose danger to our safety and well-being,anti-trafficking policies that ignore our human rights,and laws forbidding sex workers from working with drivers, security, colleagues or other sex workers. We are happy to provide further information on these issues if you require.
Sex workers are a distinct group whoshare experiences of stigma and discrimination and are recognised as a ‘priority population’ by the Australian Government’s National HIV and STI Strategies. However, sex workers also include other ‘priority population’ communities who are Culturally and Linguistically Diverse (CALD), Men who have Sex with Men (MSM), Aboriginal and Torres Strait Islander (ATSI), Sex and/or Gender Diverse (SGD) and People who Inject Drugs (PWIDs). Sex workers include many of the groups recognised in the National Human Rights Action Plan, including ‘women’, ‘older people’, ‘gay, lesbian, bisexual and sex and/or gender diverse people’, ‘people experiencing homelessness or risk of homelessness’, ‘people with disability’, ‘carers’, ‘people in prison’ and ‘refugees, asylum seekers, migrants and people with diverse backgrounds.’
Because sex workers have been left out of the key ‘Priorities’ and ‘Actions’ in the National Human Rights Action Plan, we have drafted an alternative table for the Attorney General. This table replicates the structure of the existing Action Plan, so the sections can be easily inserted into the Exposure Draft. We have identified priority areas for reform and simple actions that can be taken to improve Australia’s human rights obligations to sex workers.
We recommend that the Attorney General include sex workers as a key ‘specific group’ who is ‘particularly vulnerable to disadvantage and human rights abuse’, and insert the attached table into the Action Plan in the appropriate section.
We further recommend that you use the ‘migration’ strategies in our attached table to replace the section on ‘People Trafficking’, and re-orient that section to take a prevention approach that supports and protects the human rights of migrant sex workers. The submissions below provide more feedback on this.
The Human Rights Framework brings a unique and rare opportunity to end state-sanctioned violence against sex workers in this country. We had looked towards this initiative with optimism and hope.
Please take the time to carefully read our submissions below and consider the sex worker Action Plan that we have drafted for you. Protecting the human rights of sex workers (including our industrial rights, occupational health and safety, self-determination and social inclusion) is consistently demonstrated as the onlyeffective approach to HIV prevention, anti-trafficking and health promotion.
The Australian Government needs to take sex worker human rights seriously, if it is concerned with human rights for all.
Regards,
Kane Matthews
Scarlet Alliance President
About Scarlet Alliance
Scarlet Alliance, the Australian Sex Workers Association, is the peak national sex worker organisation in Australia. Formed in 1989 the organisation represents a membership of individual sex workers and sex worker organisations.
Scarlet Alliance member organisations and projects have the highest level of contact with sex workers, including contract workers, in Australia of any agency, government or non-government. Through our project work and the work of our membership we have close to 100% access to sex industry workplaces in the major cities and many regional areas of Australia. Many of our sex worker organisations and projects within Australia have CALD (culturally and linguistically diverse) projects employing bi-lingual project workers. These staff provide information, education and support to women who may be working under contract in Australia or who may be experiencing exploitation or trafficking-like conditions.
The Scarlet Alliance Migration Project, staffed and managed entirely by migrant sex workers, was formally first funded in 2009. The project aims to fill the evidence gap ensuring that policy responses to trafficking issues represent the actual experiences of migrant sex workers in Australia. The project works to support evidence based policy development, capacity development of sex worker peer educators in delivering services to migrant sex workers, and produce translated information for distribution to sex workers of Thai, Chinese and Korean language backgrounds.
It is these experiences and the high level of contact and support provided by our membership to CALD communities within the sex industry, including women who have entered Australia under contract, which informs our feedback.
Scarlet Alliance has played a critical role in informing governments and the health sector, both in Australia and internationally, on issues affecting workers in the Australian sex industry.
Both the Australian Government and UN bodies have recognised the importance of sex worker human rights
Sex workers, as recognised by the Australian Government and globally as a community affected by HIV, experience unacceptable levels of discrimination and denial of human rights. Sex workers are listed as a priority population by the Commonwealth Department of Health and Ageing’s National STI Strategy 2010-2013 and the National HIV Strategy 2010-2013. The HIV Strategy states that‘Australia’s approach to HIV/AIDS has demonstrated the protection of human rights to be compatible with and essential to the effective protection of public health.’[1]Concern for sex worker human rights has been raised in many human rights forums within Australia and internationally over many years. Four states in Australia have anti-discrimination categories aimed at protecting sex workers from discrimination. United Nations Secretary General Ban Ki-Moon states that ‘In most countries, discrimination remains legal against women, men who have sex with men, sex workers, drug users, and ethnic minorities. This must change.’[2] Former Australian High Court judge the Hon. Michael Kirby AC CMG states that ‘We will insist on human rights for all, including for sex workers. Nothing else is acceptable as a matter of true public morality.’[3] UNAIDS and the United Nations Population Fund state that it is essential for governments to create an enabling legal and policy environment which insists upon universal rights for sex workers and ensures our access to justice.[4]This paper states that ‘[v]iolence against sex workers, including by state actors, are human rights violations that should be taken up by human rights institutions’.[5]These examples are just the tip of the iceberg of a worldwide, organised, mobilised movement advocating for the recognition and protection of sex worker human rights.
The Baseline Study and Human Rights Action Plan completely overlook sex workers
The failure to mention sex work in the Baseline Study and Human Rights Action Plan aside from references to ‘people trafficking’, ‘child prostitution’ and ‘child pornography’ illustrates a fundamental misconception that sex work is not work, and that sex workers are not deserving of positive rights. This is particularly evident in the provisions that support criminal justice and police intervention into migrant sex workers lives, but fail to provide any ‘workers rights’ protections and refuse to ratify the Migrant Worker’s Convention. It is especially obvious in the inclusion of ten different groups ‘particularly vulnerable to disadvantage and human rights abuses’ but the failure to mention sex workers.
Sex workers are rarely treated as experts on our own lives and professions. Government drafting committees regularly exclude sex worker voices when developing policy and law reform. This erasure means that legislation affecting sex workers is largely divorced from our daily experiences and fails to address our key needs and concerns. History has shown that when others speak for sex workers, the result is policies that injure and endanger sex workers. The systematic erasure of sex worker lived experiences is akin to the social exclusion and oppression faced by other marginalised groups worldwide. This oppression prevents sex workers from participating in processes to effectively determine our own futures.
Listening to and learning from sex workers is essential to developing a Human Rights Action Plan that is evidence-based and effective. A Partnership approach between government and affected communities has been central to Australia’s response to HIV.
Protecting sex worker human rights is essential
The Scarlet Alliance submission to the National Consultation on Human Rights in Australia in 2009 stated that ‘sex worker human rights are intrinsically linked to our ability to negotiate with our clients... Increased human rights translate to better health and wellbeing in the sex worker community.’[6] A human rights approach is recognised at a national and international level as the best strategy for health promotion and sex industry regulation, supporting sex workers in peer education, labour organising and self-determination, and addressing trafficking and labour exploitation.
A number of international human rights protections are vital for sex workers. These include: The right to self determination (Art 1 ICCPR; Art 1 ICESCR); the right to liberty and security of person, including not being subjected to arbitrary arrest or detention (Art 9 ICCPR); the right not to be subjected to arbitrary or unlawful interference with their privacy(Art 17 ICCPR); the right of peaceful assembly (Art 21 ICCPR); the right to freedom of association with others (Art 22 ICCPR); the right to work and opportunity to gain a living by work which one freely chooses (Art 6, ICESCR); the right to just and favourable conditions of work, including safe and healthy working conditions (Art 7 ICESCR); the right to freedom of movement and residence within the borders of each state (UDHR 13); the right to partake in government (Art 21 UDHR); the right to free choice of profession (CEDAW Art 11); the right to social security and paid leave (Art 11 CEDAW); the rights of migrant workers to not be subject to arbitrary interference or attacks upon their privacy (Art 14 MWC); the rights of migrant workers to be recognised without distinctions of sex or race (Art 7 MWC); and the rights of migrant workers to be protected by the state from threats and intimidation (Art 16 MWC); and the rights of migrant workers to enjoy treatment not less favourable than state nationals (Art 25 MWC). In addition, The World Association for Sexual Health has produced a Millennium Declaration of Sexual Rights which is adapted by ASSERT, the Australian Society of Sex Educators and Therapists. ASSERTlists ‘freedom of choice in adult sexual relationships’ and ‘freedom to experience and express sexual pleasure’, free from ‘legal or social sanctions’ as ‘fundamental and universal rights.’[7]
Australia must move forward with haste in ratifying these international human rights treaties and declarations, without reservations, and in adopting all their provisions into domestic law.
Sex workers experience systemic discrimination and denial of human rights
Sex workers face discrimination on the basis of occupation and sexual activity. We experience discrimination in our access to goods and services, housing and accommodation, employment opportunities and access to justice. Our human rights to free choice of employment, right to just and favourable conditions of work, right to freedom of movement and right to freedom of association are regularly and systemically denied. We face the criminalisation of our workplaces, barriers to occupational health and safety at work, and limited access to legal remedies due to stigma and prejudice. Sex workers face restrictions on international travel, restrictions on our mobility across sectors of the industry, and pressure to re-locate to areas that pose danger to our safety and well-being. Sex workers are further deprived of freedom of association, with laws forbidding sex workers from working with drivers, security, colleagues or other sex workers, hindering our ability to collectively organise and advocate. Sex workers are discriminated against on the basis of our HIV status – HIV positive sex workers in Australia have been criminalised and jailed even though no transmission or unsafe practices were proven.
As one sex worker writes, we experience ‘years of overt, systemic, structural, ongoing, accepted, supported, celebrated discrimination.’[8]As Scarlet Alliance’s submission to the National Consultation on Human Rights states:
Governments, the public sector and the private sector all discriminate against sex workers. This discrimination results in a general acceptance of social stigma against sex workers and internalised stigma among the sex worker community.