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Street-Based Sex Work

What is soliciting and is it an offence?

Soliciting involves either a sex worker or a client actively approaching or inviting someone to sell or buy a sexual service. It can involve ‘accosting, importuning or flaunting’.  A worker might not be soliciting just by standing on a street corner—even if in a well known ‘working’ area. But if you are obviously approaching possible clients, flaunting or advertising your availability, it might be considered soliciting. 

Is it legal for you to solicit and work on the street in NSW?

Street-based sex work is legal in NSW, but there are restrictions on where you can work, how you can solicit and whether you can work with someone else.

Officially, it is not an offence to:

  • approach a car when called over
  • discuss the services you offer and their price with a potential client.

BUT this is open to interpretation. The problem here is about evidence in court. An undercover police officer may say you approached the car on your own initiative, and offered them a service. Whether a worker is guilty or not depends on the court’s decision about who made the first approach. The court often believes the word of a police officer over that of a sex worker. If the case is taken to court it is up to the magistrate to decide whether you were soliciting or not.

The new liquor licensing laws no longer make it an offence for a sex worker to solicit in licensed premises. BUT, under liquor licensing laws it may be an offence for licensees to allow soliciting on their premises as this could be defined as ’indecent conduct’.

The licensee of a hotel, bar or nightclub can decide that certain behaviours—such as ‘indecent acts'—are unacceptable by their personal standards. They can then ask any patron, including a sex worker or client who is soliciting for sexual services, to leave the licensed premises.

It is also an offence to actively solicit in certain areas.  

Where is it NOT legal for you to SOLICIT as a street worker?

Although street-based sex work is legal in NSW, you cannot solicit on a road or road-related area—such as a footpath—near or within view of a:

  • dwelling—homes or residences not attached to shops or commercial premises
  • school
  • church or
  • hospital. 

This applies whether you are on foot or inside a motor vehicle. 

This means that you have to only be ‘in view’ of these places—no one needs to actually see you—to be breaking the law. A flat above a shop is not counted as a ‘dwelling’, so you can solicit near a flat above a shop but not in sight of a ground floor dwelling.

It is also an offence to solicit in a school, church or hospital.

It is also an offence to solicit in a way that harasses or distresses someone. If you do, you can be charged with soliciting even if you are on private property—such as a balcony.

What is the penalty for unlawful soliciting?

The maximum penalties for unlawful soliciting are a fine of $660 (or $880 for soliciting in a way that harasses or distresses someone) or 3 months’ imprisonment. Unless the court decides to dismiss the matter without recording a conviction, you will also get a criminal record. 

Where is it NOT legal for you to WORK as a street worker?

You cannot work or engage in sexual activity in public view or in public places. You can be charged with working even if it is in a car that cannot be seen into, or in isolated industrial areas, quiet back streets and parklands. Roads are considered ‘public places’. Clients can also be charged.

What is the penalty if you work in an unlawful place?

If you are found guilty of doing sex work in (or within view of) a public place the maximum penalties can be a fine of $1100 or 6 months’ imprisonment. Unless the court decides not to record a conviction, you will also receive a criminal record.

Who enforces laws on street-based sex work?

Street-based sex work laws are enforced by the NSW Police. In different areas the police have different attitudes to street work, and some commanders may direct their staff to focus on street-based sex workers or clients.

Even if the police charge you with soliciting in an area they believe to be illegal, the court makes the final decision and the police have to prove their case. BUT if you do not show up in court, the police do not have to prove anything and the court can make a decision in your absence.

NOTE: If you show up for court you are more likely to be found not guilty, or receive a more lenient penalty.

Can the police charge you just for doing street-based sex work?

No, the police cannot charge you for doing street-based sex work unless you are breaking the law by:

  • soliciting unlawfully
  • doing sex work in public view

SUGGESTION: It is good to know your rights, which areas are prohibited and police attitudes to working in other (illegal) areas. Be as cool as possible when dealing with the police.

What else can you be charged with?

Police can charge workers with other offences such as:

  • offensive conduct
  • offensive language in or near a school or public place and
  • not following ‘reasonable directions’ from a police officer.

What are police ‘move on’ powers?

The police have the power to give you a ‘reasonable direction’ if you are in a public place. This usually means asking you to move on out of a particular area for a particular period of time. They can only do this if:

  • your presence or behaviour is obstructing people or traffic
  • you are harassing or intimidating people
  • you are likely to cause fear to a ‘reasonable’ person, or
  • you are there for the purpose of buying or selling drugs. 

If you do not move on after ONE warning, the police can fine you up to $220.  An on-the-spot fine is usually issued. But if the police suspect you have given false or misleading information about your identity—or if they really want you out of the area—they might arrest you instead.  If you are charged or fined, you have a right to challenge it in court. Court challenges are often successful, as police frequently give move-on directions without reasonable grounds.

What is ‘loitering’ and is it an offence?

‘Loitering’ is hanging around.  It is not an offence—but may be if you do it in areas where the local council has put up a valid ‘No Loitering’ sign.  A council worker or police officer can give you an on-the-spot fine for disobeying a ’No Loitering’ sign. They may also arrest you—although this is unlikely.

NOTE: The legality of anti-loitering notices is uncertain and you should get legal advice if you are moved on or fined for ‘loitering’.

Can you employ a minder, friend or security guard?

If you have a friend or minder who ‘looks out’ for you—for example, by recording car numbers, or by holding safe sex equipment—they can be charged by police with ‘living off the earnings’ of a street-based sex worker. This is difficult for the police to prove, and prosecutions are rare. Instead the police may use move on powers to interrupt minders or friends.

Can you say that a police officer talked you into the job (entrapment)?

No, you cannot say that a police officer talked you into the job. There is no defence of entrapment in Australian law. But if a police officer approaches you or calls you over to their car, you are probably not guilty of soliciting. Once again, this is often difficult to defend in court because if the police say that you approached them the court is likely to believe them rather than you. Even if you ask if they are the police, officers do not have to answer truthfully.

When can the police arrest you, and what else can they do to you?

The police can only arrest you if:

  • they see you committing an offence
  • they have a reasonable suspicion that you have committed an offence
  • they have a reasonable suspicion that you have breached your bail or
  • there is a warrant out for your arrest. 

Arrest is a last resort and police should use alternatives—such as issue an on-the-spot fine or court attendance notice.

The police can photograph and fingerprint you after they have arrested you and taken you into custody. Police may also search you after arrest.

Even if they have not arrested you, the police may stop and search you if they reasonably suspect you of carrying something:

  • illegal—such as drugs
  • dangerous—such as a weapon or
  • that you intend to use (or have used) to commit an offence.

What are your rights when you are arrested?

You do not have to answer any questions the police ask you. You have a right to silence at all times. Before they arrest you, the police may ask you questions without warning you of your right to silence. The police should warn you of your right to silence once they have decided to arrest you.

You do not have to carry identification (ID), unless you are driving a vehicle, in which case you must produce your licence on demand to the police. It is not usually an offence to give a false name or address, except in limited situations—usually involving motor vehicle accidents.

Is it safe for you to carry condoms or SWOP information?

Carrying safe sex equipment—such as condoms or SWOP information—is not conclusive evidence that you are doing sex work, but it could be used as part of evidence that you are working.

Remember that sex work itself is not an offence! There must be actual evidence that you were seen soliciting or doing a job in a prohibited area.

Case Study

Karen was walking past a row of terraces on the way home from a friend’s place. She was not planning to work but thought she would take a job if one came along. She heard a car, turned around and saw the driver smiling at her from about two metres away. The driver looked again and smiled so Karen opened the door and said:

“How are you going?”
The driver replied: “OK”.
Karen then said: “Are you looking for a girl?”
The driver replied: “What are you offering?”
Karen gave her prices.
The driver said: “OK, let’s go.”
Karen got in the car and then the driver produced his police badge.
He said: “You are arrested for soliciting within view of a dwelling.”

Karen went to court and pleaded not guilty. The magistrate looked at the law, which said soliciting meant more that just offering sexual services for money—it included an element of pestering, accosting or flaunting. Karen was found not guilty because she was simply offering a sexual service for money, without actively approaching anyone.

Disclaimer: This document is presented for the purposes of providing information, and is not a substitute for independent professional legal advice. Nothing contained  in this document is intended as a substitute for your own legal professional’s advice. SWOP and the Law and Justice Foundation (NSW) do not accept any liability for any illness, loss or damage incurred by use of, or reliance upon, the information in this article. Persons using this article should carefully evaluate its accuracy, currency, completeness and relevance for their purposes, and should obtain any  appropriate professional advice relevant to their particular circumstances. SWOP and the Law and Justice Foundation (NSW) cannot guarantee and assumes no legal liability or responsibility for the accuracy, currency or completeness of the information