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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Prostitution Bill 2011 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 3. Terms used 2 4. Prostitution 4 5. Delegation of CEO's functions 5 6. Delegation of Commissioner's functions 5 7. Service etc. of documents 6 Part 2 -- General provisions about prostitution 8. Term used: public place 7 9. Seeking prostitute in or in view of or within hearing of public place 7 10. Seeking client in or in view or within hearing of public place 8 11. Seeking to induce person to act as prostitute 9 12. Refusal to take part in act of prostitution 10 13. Client not to take part in, or negotiate, act of prostitution if no licence applies to place 10 14. Persons not to be in prostitution business place unless licences of operator and manager, or self-employed prostitute, displayed 11 15. Prohibition on acts of prostitution with person in sexual servitude 12 16. Promoting employment in prostitution industry 13 17. Prohibition of certain sponsorships 13 218--1 page i Prostitution Bill 2011 Contents Part 3 -- Conducting a prostitution business 18. Display of licence 15 19. Operator not to act as prostitute 16 20. Operator or manager must be present 16 21. Person acting as prostitute in prostitution business must be an employee or contractor 16 22. Person acting as prostitute in prostitution business must be licensed or verify identity etc. 17 23. Manager not to act as prostitute on same shift 17 24. Prostitution business not to operate in licensed premises 17 25. Restrictions on alcohol 18 26. Limit on number of prostitution businesses to be conducted in a place 18 27. Advertising, signage restrictions 18 28. Obligations of operators and managers as to information about right of refusal 20 29. Refusal to work as prostitute does not affect entitlements 20 Part 4 -- Minimising risk of acquiring, transmitting sexually transmissible infections 30. Terms used 21 31. Suitable sheath must be provided, used in certain acts of prostitution 21 32. No representations as to STI infection status 22 33. Prohibition on certain acts of prostitution for persons with STI 23 34. Further minimising risk of STI acquisition, transmission 24 35. Obligations of operators and managers as to health information 24 Part 5 -- Children 36. Causing, permitting or seeking to induce child to act as prostitute 26 37. Obtaining payment for prostitution by child 26 page ii Prostitution Bill 2011 Contents 38. Agreement for prostitution by child 26 39. Prostitution in place where child present 27 40. Allowing child to be in place involving prostitution 27 41. Obligations of prostitution business operators in relation to children 27 42. Acting as prostitute for child 28 43. Child not to seek services of prostitute 28 Part 6 -- Licensing Division 1 -- Preliminary 44. Terms used 30 Division 2 -- Licences required for certain activities involving prostitution 45. Operators to be licensed 31 46. Managers to be licensed 32 47. Prostitutes to be licensed or to verify identity etc. for operator 32 48. Limiting numbers of licences that may be issued for areas, periods 32 Division 3 -- Licence applications 49. Application for operator's licence or renewal 33 50. Application for manager's licence or renewal 34 51. Application for prostitute's licence or renewal 35 52. Taking of fingerprints and palm prints 36 53. Further information relevant to application 38 54. Report of Commissioner 39 55. Issue, renewal of operator's licence 39 56. One person may hold up to 3 operator's licences 42 57. Issue, renewal of manager's licence 42 58. Issue, renewal of prostitute's licence 44 59. Reasons for refusal to issue, renew licence 45 Division 4 -- Licence conditions 60. Conditions generally 46 61. Condition as to change of location of business 46 62. Conditions as to size of business 47 63. Conditions of operator's licences as to records to be kept 47 64. Conditions imposed by CEO 48 65. Compliance with conditions 49 page iii Prostitution Bill 2011 Contents Division 5 -- Other matters about licences 66. Duration of licence 50 67. Licence not transferable 50 68. Register of licence holders 50 69. Inspection of register 51 70. Licence document 52 71. CEO to be notified of certain matters affecting licences 52 Division 6 -- Suspension or revocation of licence 72. Powers of CEO 55 73. Suspension or revocation of a licence 56 74. Notification of revoked licences 58 75. Persons whose licence revoked not to work for prostitution business for 5 years 59 Division 7 -- Offences relating to licences 76. False or misleading information 59 77. Offences in relation to determination under section 72 60 78. Incriminating information, questions or documents 61 Division 8 -- Planning and development controls 79. Terms used 61 80. Measurement of distances 63 81. This Division does not affect licensing requirements 64 82. This Division overrides planning schemes, approvals 64 83. No prostitution businesses in residential areas 64 84. Prostitution businesses in non-residential areas 65 85. Prostitution businesses in non-residential areas in City of Perth inner zone 65 86. Prostitution businesses in non-residential areas in rest of State 66 Division 9 -- Governor's powers as to licences in certain areas and licence applications 87. Terms used 68 88. No licence area order 68 89. Particular applicant order 69 page iv Prostitution Bill 2011 Contents 90. Effect of orders 70 91. Orders not open to disallowance, challenge 70 Part 7 -- Enforcement Division 1 -- Preliminary 92. Term used: authorised person 71 93. Reasonable force 71 94. Hindering performance of functions 71 Division 2 -- Information and reports 95. Confidential police information 71 96. Commissioner's reports, opinions on licensing matters 73 Division 3 -- Authorised persons 97. Authorised persons 73 98. Identity cards 73 99. Production or display of identity card 74 100. Limitation on powers of authorised person 74 Division 4 -- Enforcement powers 101. Terms used 75 102. Police officer, authorised person, may enter place for certain purposes 75 103. Obstructing person exercising power under s. 102 76 104. Powers to obtain information 77 105. Failure to comply with requirements under s. 104 79 106. Police direction to move on 80 107. Detain, search and seize without warrant 80 108. Detain, search and seize with warrant 81 109. Warrant may be obtained remotely 82 110. Provisions about searching a person 83 111. Retaining something seized but not forfeited 85 112. Forfeiture and delivery on conviction 86 113. Forfeiture and delivery other than on conviction 86 114. Disposal of thing forfeited 88 115. Powers to assist seizing things 88 Division 5 -- Prohibition orders 116. Terms used 88 117. Commissioner may apply for prohibition orders 89 118. Evidence in support of application 89 119. Relevant person to be given notice of application 90 page v Prostitution Bill 2011 Contents 120. CEO may make prohibition orders 90 121. Term of prohibition orders 91 122. Applications to vary or revoke prohibition orders 92 123. Respondent to be given notice of application 92 124. CEO may vary or revoke prohibition orders 93 125. Notification of orders 93 126. Compliance with prohibition order 94 Division 6 -- Barring notices 127. Terms used 94 128. Barring notices by Commissioner 95 Division 7 -- Closure notices and closure orders 129. Terms used 96 130. Closure notice for interim closure of certain places 97 131. Requirements for issue of closure notice 97 132. Content of closure notice 99 133. Service of closure notice 100 134. Duration of closure notice 100 135. Provisions about making closure order 101 136. Term of closure order 102 137. Service of closure order 103 138. Breach of closure notice, closure order 103 Division 8 -- Restraining orders 139. Term used: restraining order 103 140. Restraining order to prevent further offence 103 141. Restraining order against person who could be required to move on 104 142. Provisions about making the order 104 143. Terms of restraining order 104 144. Duration of restraining order 105 145. Variation or cancellation 106 146. Court to notify parties of decision 107 147. When cancellation takes effect 108 148. Provisions about children 108 149. Order not to conflict with family order 109 150. Regulations relating to restraining order applications 109 151. Breach of restraining order 110 Division 9 -- Undercover officers 152. Undercover officers 110 page vi Prostitution Bill 2011 Contents Part 8 -- Review by State Administrative Tribunal 153. Review 112 Part 9 -- Evidence 154. Allegations in prosecution notices 113 155. Presumptions about intention 113 156. Presumptions about nature of advertisements 114 157. Accused presumed to know if person is a child 114 158. Person residing with child prostitute presumed to receive payment 114 159. Accused presumed to have allowed presence of child 115 160. Presumptions about operating or managing prostitution business without licence 115 161. Presumptions about acting or operating as a prostitute without licence or without verifying identity etc. for operator 116 162. Certificate evidence about licences 116 163. Certificate that undercover officer was authorised 117 164. Presumptions about authority to do certain things 117 165. Possession of quantity of sheaths not evidence of offence 118 Part 10 -- Prostitution Account 166. Prostitution Account 119 Part 11 -- General provisions 167. Prosecutions 121 168. Issue of infringement notice to be preferred for first offences under s. 47(1) 121 169. Penalties for bodies corporate 122 170. Protection from liability 122 171. Exchange of information between State authorities 122 172. Confidentiality 124 173. Liability of managerial officer for offence by body corporate 124 174. Liability of operator for offence by manager 125 175. Regulations 125 176. Review of Act 126 page vii Prostitution Bill 2011 Contents Part 12 -- Repeals, transitional provisions Division 1 -- Repeals 177. Prostitution legislation repealed 127 Division 2 -- Transitional provisions arising from the enactment of the Prostitution Act 2011 178. Terms used 127 179. Duration of licences issued in first year 127 180. Planning requirements as to existing prostitution businesses 127 181. Licensing requirements for operators of existing prostitution businesses 130 182. Restraining orders 131 183. Undercover officers 132 Part 13 -- Amendments to other Acts 184. Community Protection (Offender Reporting) Act 2004 amended 133 185. The Criminal Code amended 133 186. Criminal Property Confiscation Act 2000 amended 134 187. Evidence Act 1906 amended 134 188. Health Act 1911 amended 135 Part XI -- Sexually transmissible infections and disorders affecting the reproductive organs 299. Term used: STI 136 189. Liquor Control Act 1988 amended 137 190. Sentencing Act 1995 amended 138 191. Western Australian College of Teaching Act 2004 amended 138 192. Workers' Compensation and Injury Management Act 1981 amended 139 12A. Exclusion of unauthorised prostitutes other than minors and coerced persons 139 193. Working with Children (Criminal Record Checking) Act 2004 amended 141 194. Young Offenders Act 1994 amended 141 page viii Prostitution Bill 2011 Contents Schedule 1 -- Offences relevant to granting, renewing operator's or manager's licence Defined Terms page ix Western Australia LEGISLATIVE ASSEMBLY Prostitution Bill 2011 A Bill for An Act -- • to make provisions about prostitution and for related purposes; and • to repeal the Prostitution Act 2000, the Prostitution Amendment Act 2008 and the Prostitution (Restraining Orders) Regulations 2000; and • to amend certain other Acts as a consequence of the enactment of this Act. The Parliament of Western Australia enacts as follows: page 1 Prostitution Bill 2011 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Prostitution Act 2011. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) sections 1 and 2 -- on the day on which this Act 7 receives the Royal Assent; 8 (b) the rest of the Act -- on a day fixed by proclamation, 9 and different days may be fixed for different provisions. 10 3. Terms used 11 In this Act, unless the contrary appears -- 12 act as a prostitute means to take part, as a prostitute, in an act of 13 prostitution; 14 act of prostitution means anything the doing of which amounts 15 to prostitution; 16 CEO means the chief executive officer of the Department; 17 child means a person who is under 18 years of age; 18 client has the meaning given in section 4; 19 Commissioner means the person holding or acting in the office 20 of Commissioner of Police under the Police Act 1892; 21 confidential police information means any information or 22 document classified by the Commissioner as confidential under 23 section 95(1); 24 Department means the department of the Public Service 25 principally assisting the Minister in the administration of Part 6; 26 document includes any tape, disk or other device or medium on 27 which information is recorded or stored mechanically, 28 photographically, electronically or otherwise; page 2 Prostitution Bill 2011 Preliminary Part 1 s. 3 1 dwelling means a place or a part of a place that is used as a 2 person's residence and it does not matter that it is from time to 3 time uninhabited; 4 in, in relation to a place, includes at or on the place; 5 licence means an operator's licence, a manager's licence, a 6 prostitute's licence (general) or a prostitute's licence 7 (self-employed); 8 licence holder means the holder of an operator's licence, a 9 manager's licence, a prostitute's licence (general) or a 10 prostitute's licence (self-employed); 11 manage, in relation to a prostitution business, means undertake 12 the immediate management, direction or control of the conduct 13 of the prostitution business; 14 manager means a person who manages a prostitution business; 15 manager's licence means a licence issued or renewed under 16 section 57; 17 operate, in relation to a prostitution business, means -- 18 (a) whether alone or with others, own, operate or conduct 19 the prostitution business; or 20 (b) employ, engage, supervise or direct any person who 21 undertakes the immediate management, direction or 22 control of the conduct of the prostitution business; or 23 (c) employ, engage, supervise or direct any person who acts 24 as a prostitute for the prostitution business; or 25 (d) exercise or exert, or be in a position to exercise or exert, 26 control or substantial influence over the manner in 27 which the prostitution business is conducted; 28 operator means a person who operates a prostitution business; 29 operator's licence means a licence issued or renewed under 30 section 55; 31 owner, in relation to land, means each registered proprietor of 32 the land; page 3 Prostitution Bill 2011 Part 1 Preliminary s. 4 1 place means anywhere at all, and includes anywhere in or on 2 something that is moving or can move; 3 prescribed means prescribed by regulation; 4 prohibited drug has the meaning given in the Misuse of Drugs 5 Act 1981 section 3(1); 6 proprietary company has the meaning given in the 7 Corporations Act 2001 (Commonwealth) section 9; 8 prostitute has the meaning given in section 4; 9 prostitute's licence (general) means a licence of that name 10 issued or renewed under section 58; 11 prostitute's licence (self-employed) means a licence of that 12 name issued or renewed under section 58; 13 prostitution has the meaning given in section 4; 14 prostitution business means a business involving one or more 15 persons taking part in, or being available to take part in, acts of 16 prostitution whether the acts of prostitution take place in the 17 place in which the business is conducted or elsewhere; 18 self-employed prostitute means a person who solely owns, 19 operates and conducts a prostitution business in which -- 20 (a) only that person takes part in acts of prostitution with 21 clients of the business; and 22 (b) that person has full control over his or her individual 23 earnings from taking part in acts of prostitution; 24 work includes to work under a contract of employment or a 25 contract for services. 26 4. Prostitution 27 When this Act refers to prostitution it means prostitution in 28 which payment is consideration for the sexual stimulation of a 29 person (the client) by means of physical contact between the 30 client and another person (the prostitute), or between either of 31 them and anything controlled by or emanating from the other, 32 and it is irrelevant whether payment is in money or any other 33 form. page 4 Prostitution Bill 2011 Preliminary Part 1 s. 5 1 5. Delegation of CEO's functions 2 (1) The CEO may delegate to a person any power or duty of the 3 CEO under another provision of this Act. 4 (2) The delegation must be in writing signed by the CEO. 5 (3) A person to whom a power or duty is delegated under this 6 section cannot delegate that power or duty. 7 (4) A person exercising or performing a power or duty that has been 8 delegated to the person under this section is to be taken to do so 9 in accordance with the terms of the delegation unless the 10 contrary is shown. 11 (5) Nothing in this section limits the ability of the CEO to perform 12 a function through an officer or agent. 13 6. Delegation of Commissioner's functions 14 (1) The Commissioner may delegate to a person any power or duty 15 of the Commissioner under another provision of this Act except 16 a function given by section 95(1), 128 or 152(2). 17 (2) However, the Commissioner may delegate the Commissioner's 18 functions -- 19 (a) under section 95(1) or 152(2) to a police officer of or 20 above the rank of Assistant Commissioner of Police; or 21 (b) under section 128 to a police officer of or above the rank 22 of Inspector. 23 (3) The delegation must be in writing signed by the Commissioner. 24 (4) A person to whom a power or duty is delegated under this 25 section cannot delegate that power or duty. 26 (5) A person exercising or performing a power or duty that has been 27 delegated to the person under this section is to be taken to do so 28 in accordance with the terms of the delegation unless the 29 contrary is shown. page 5 Prostitution Bill 2011 Part 1 Preliminary s. 7 1 (6) Nothing in this section limits the ability of the Commissioner to 2 perform a function through an officer or agent. 3 7. Service etc. of documents 4 If a provision of this Act requires that a notice or copy of an 5 order is to be given, served or sent the notice or copy of the 6 order may be given, served or sent in accordance with the 7 Interpretation Act 1984 section 76. page 6 Prostitution Bill 2011 General provisions about prostitution Part 2 s. 8 1 Part 2 -- General provisions about prostitution 2 8. Term used: public place 3 In this Part -- 4 public place means -- 5 (a) any place to which the public, or any section of the 6 public, have or are permitted to have access whether on 7 payment or otherwise; or 8 (b) a school, university or other place of education, other 9 than a part of it to which neither students nor the public 10 usually have access; or 11 (c) a privately owned place that is unoccupied or is 12 occupied by a person who is not an owner of the place 13 and does not have the authority of an owner. 14 9. Seeking prostitute in or in view of or within hearing of 15 public place 16 (1) A person must not, in or in the view or within hearing of a 17 public place, seek another person to act as a prostitute. 18 (2) A person who contravenes subsection (1) is guilty of a crime if 19 the person whom the offender sought to act as a prostitute, or 20 any of them if there were more than one, was a child at the time 21 the offence was committed. 22 Penalty: 23 (a) for a simple offence, imprisonment for 2 years; 24 (b) for a crime, imprisonment for 14 years. 25 (3) For the purposes of subsection (1), a person (the offender) seeks 26 another person to act as a prostitute if the offender -- 27 (a) invites or requests another person to act as a prostitute; 28 or page 7 Prostitution Bill 2011 Part 2 General provisions about prostitution s. 10 1 (b) loiters in or frequents a place for the purpose of, or with 2 the intention of -- 3 (i) inviting or requesting another person to act as a 4 prostitute; or 5 (ii) receiving an invitation for another person to act 6 as a prostitute. 7 (4) It makes no difference -- 8 (a) whether or not the offender is the prospective client; or 9 (b) whether or not a particular person is sought to act as a 10 prostitute; or 11 (c) whether the offender makes or intends to make the 12 invitation or request directly or through someone else to, 13 or intends to receive the invitation directly or through 14 someone else from, the person whom the offender seeks 15 to act as a prostitute. 16 10. Seeking client in or in view or within hearing of public place 17 (1) A person must not, in or in the view or within hearing of a 18 public place, seek another person to be a prostitute's client. 19 Penalty: 20 (a) if the person whom the offender sought to be a 21 prostitute's client, or any of them if there were more 22 than one, was a child at the time the offence was 23 committed, imprisonment for 3 years; 24 (b) in any other case, imprisonment for one year. 25 (2) For the purposes of subsection (1), a person (the offender) seeks 26 another person to be a prostitute's client if the offender -- 27 (a) invites or requests another person to be a prostitute's 28 client; or 29 (b) loiters in or frequents a place for the purpose of, or with 30 the intention of -- 31 (i) inviting or requesting another person to be a 32 prostitute's client; or page 8 Prostitution Bill 2011 General provisions about prostitution Part 2 s. 11 1 (ii) receiving an invitation for another person to be a 2 prostitute's client. 3 (3) It makes no difference -- 4 (a) whether or not the offender, or any particular person, is 5 the prospective prostitute; or 6 (b) whether or not a particular person is sought to be a 7 client; or 8 (c) whether the offender makes or intends to make the 9 invitation or request directly or through someone else to, 10 or intends to receive the invitation directly or through 11 someone else from, the person whom the offender seeks 12 to be a prostitute's client. 13 11. Seeking to induce person to act as prostitute 14 (1) A person must not -- 15 (a) assault or threaten to assault anyone; or 16 (b) intimidate anyone; or 17 (c) supply or offer to supply to anyone a prohibited drug; or 18 (d) make a false representation or use any false pretence or 19 other fraudulent means; or 20 (e) use any power or authority arising out of -- 21 (i) any occupational or vocational position held by 22 the person; or 23 (ii) any relationship existing, or that used to exist, 24 between the person and anyone; 25 or 26 (f) make an accusation or disclosure (whether true or 27 false) -- 28 (i) of any offence committed by anyone; or 29 (ii) of any other misconduct that is likely to damage 30 seriously the reputation of anyone; or 31 (iii) that anyone is unlawfully in Australia; page 9 Prostitution Bill 2011 Part 2 General provisions about prostitution s. 12 1 or 2 (g) do anything else, or refrain from doing anything, 3 with the intention of inducing another person who is not a child 4 to act, or continue to act, as a prostitute or to surrender the 5 proceeds of acting as a prostitute. 6 (2) A person who contravenes subsection (1) is guilty of a crime. 7 Penalty: imprisonment for 10 years. 8 Summary conviction penalty: imprisonment for 3 years. 9 12. Refusal to take part in act of prostitution 10 (1) Despite anything in a contract to take part in an act of 11 prostitution, a person may, at any time, refuse to take part in, or 12 to continue to take part in, an act of prostitution. 13 (2) The fact that a person has entered into a contract to take part in 14 an act of prostitution does not of itself constitute consent for the 15 purposes of the criminal law if he or she does not consent, or 16 withdraws his or her consent, to taking part in a sexual act. 17 (3) Nothing in this section affects a right (if any) to rescind or 18 cancel, or to recover damages for, a contract for taking part in 19 an act of prostitution that is not undertaken. 20 13. Client not to take part in, or negotiate, act of prostitution if 21 no licence applies to place 22 (1) A person must not, as a client, take part in an act of prostitution 23 in a place which the person knows or could be reasonably 24 expected to know -- 25 (a) is not a place to which a current operator's licence 26 applies; or 27 (b) is not a place to which a current prostitute's licence 28 (self-employed) applies. page 10 Prostitution Bill 2011 General provisions about prostitution Part 2 s. 14 1 Penalty: 2 (a) if the person was not a child at the time the offence 3 was committed -- 4 (i) for a first offence, a fine of $6 000; 5 (ii) for a second or subsequent offence, a fine of 6 $6 000 or imprisonment for one year; 7 (b) if the person was a child at the time the offence was 8 committed, a fine of $2 000. 9 (2) A person must not, in any place, enter into, or offer to enter into, 10 an agreement under which the person would take part, as a 11 client, in an act of prostitution in a place which the person 12 knows or could be reasonably expected to know -- 13 (a) is not a place to which a current operator's licence 14 applies; or 15 (b) is not a place to which a current prostitute's licence 16 (self-employed) applies. 17 Penalty: 18 (a) if the person was not a child at the time the offence 19 was committed -- 20 (i) for a first offence, a fine of $6 000; 21 (ii) for a second or subsequent offence, a fine of 22 $6 000 or imprisonment for one year; 23 (b) if the person was a child at the time the offence was 24 committed, a fine of $2 000. 25 14. Persons not to be in prostitution business place unless 26 licences of operator and manager, or self-employed 27 prostitute, displayed 28 (1) A person must not enter or remain in a place in which the 29 person knows or could be reasonably expected to know that a 30 prostitution business is being conducted unless -- 31 (a) the person knows, or it is reasonable for the person to 32 assume, that each of section 18(1), (2) or (4), as is 33 relevant to the case, is being complied with; or page 11 Prostitution Bill 2011 Part 2 General provisions about prostitution s. 15 1 (b) the person has a lawful excuse for entering or remaining 2 in the place. 3 Penalty: 4 (a) for a first offence, a fine of $6 000; 5 (b) for a second or subsequent offence, a fine of $6 000 6 or imprisonment for one year. 7 (2) Without limiting subsection (1)(b), a person has a lawful excuse 8 for entering or remaining in a place in which a prostitution 9 business is being conducted if the person does so on behalf of 10 an organisation that provides support, health services, education 11 and information to people working in the prostitution industry. 12 15. Prohibition on acts of prostitution with person in sexual 13 servitude 14 (1) A person must not take part in an act of prostitution as a client if 15 the prostitute is being compelled by another person to take part 16 in the act of prostitution. 17 (2) A person who contravenes subsection (1) is guilty of a crime if 18 the person knows or could be reasonably expected to know that 19 the prostitute is being compelled to take part in the act of 20 prostitution. 21 Penalty: 22 (a) for a simple offence, imprisonment for 2 years; 23 (b) for a crime -- 24 (i) if the prostitute was a child or an incapable 25 person at the time the offence was committed, 26 imprisonment for 20 years; 27 (ii) otherwise, imprisonment for 14 years. page 12 Prostitution Bill 2011 General provisions about prostitution Part 2 s. 16 1 (3) In subsection (2) -- 2 incapable person means a person who, because of intellectual 3 disability, mental illness, brain damage or senility, is 4 incapable -- 5 (a) of understanding the nature and effect of an act of 6 prostitution; or 7 (b) of guarding himself or herself against sexual 8 exploitation. 9 16. Promoting employment in prostitution industry 10 A person must not publish or cause to be published a statement 11 that is intended or likely to induce a person to seek to -- 12 (a) work as, or act as, a prostitute; or 13 (b) work in any other capacity for a prostitution business. 14 Penalty: a fine of $50 000. 15 17. Prohibition of certain sponsorships 16 (1) In this section -- 17 sponsorship includes -- 18 (a) a scholarship, prize, gift or other like benefit; and 19 (b) any financial arrangement (other than a bona fide 20 contract of employment or a bona fide contract for 21 services) for directly promoting or publicising a person 22 or business as referred to in subsection (2)(a) or (b) 23 through any medium. 24 (2) A person must not, in this State, promote or publicise, or agree 25 to promote or publicise -- 26 (a) any person as a prostitute; or 27 (b) any prostitution business, 28 under a contract, or an arrangement (whether or not legally 29 binding), under which a sponsorship is provided, or to be 30 provided, by another person. 31 Penalty: a fine of $50 000. page 13 Prostitution Bill 2011 Part 2 General provisions about prostitution s. 17 1 (3) A person (whether inside or outside this State) must not provide, 2 or agree to provide, in this State a sponsorship under a contract 3 or arrangement of a kind referred to in subsection (2). 4 Penalty: a fine of $50 000. page 14 Prostitution Bill 2011 Conducting a prostitution business Part 3 s. 18 1 Part 3 -- Conducting a prostitution business 2 18. Display of licence 3 (1) Each operator of a prostitution business that is being conducted 4 in a place must ensure that the current licence of each operator 5 of the business or a certified copy of the licence is displayed in 6 the place -- 7 (a) so that it is visible to a person on entering the place; and 8 (b) at all times during which the business is being 9 conducted in the place, whether or not the, or any other, 10 operator is in the place. 11 Penalty: a fine of $12 000. 12 (2) A manager of a prostitution business that is being conducted in 13 a place must ensure that the manager's current licence or a 14 certified copy of the licence is displayed in the place when the 15 manager is managing the business so that it is visible to a person 16 on entering the place. 17 Penalty: a fine of $12 000. 18 (3) Subsections (1) and (2) do not apply to a self-employed 19 prostitute. 20 (4) A self-employed prostitute must ensure that his or her current 21 prostitute's licence (self-employed) or a certified copy of the 22 licence is displayed in the place to which the licence applies 23 when the person is conducting the business in the place so that it 24 is visible to a person on entering the place. 25 Penalty: a fine of $2 000. 26 (5) Subsection (4) applies whether or not another self-employed 27 prostitute conducts a prostitution business in the same place. 28 (6) A person must not alter or deface a licence. 29 Penalty: a fine of $12 000. page 15 Prostitution Bill 2011 Part 3 Conducting a prostitution business s. 19 1 19. Operator not to act as prostitute 2 (1) An individual who is an operator of a prostitution business must 3 not take part in, or be available to take part in, an act of 4 prostitution whether for the prostitution business or otherwise. 5 Penalty: a fine of $50 000. 6 (2) Subsection (1) does not apply to a self-employed prostitute. 7 20. Operator or manager must be present 8 (1) A person who operates a prostitution business must ensure that 9 either an operator of the business who is an individual, or a 10 manager of the business, is present in the place in which the 11 business is conducted at all times during which the place is open 12 for business. 13 Penalty: 14 (a) for a first offence, a fine of $24 000; 15 (b) for a second or subsequent offence, imprisonment for 16 3 years. 17 (2) A person who manages a prostitution business must be in the 18 place in which the business is conducted at all times during 19 which the person is managing the business. 20 Penalty: 21 (a) for a first offence, a fine of $24 000; 22 (b) for a second or subsequent offence, imprisonment for 23 3 years. 24 21. Person acting as prostitute in prostitution business must be 25 an employee or contractor 26 A person who operates or manages a prostitution business must 27 ensure that a person (the prostitute) does not act as a prostitute 28 for the business unless -- 29 (a) the prostitute has entered into a contract of service with, 30 or been engaged to work for the purposes of the business page 16 Prostitution Bill 2011 Conducting a prostitution business Part 3 s. 22 1 under a contract for services by, a person who operates 2 the business; and 3 (b) whenever acting as a prostitute for the business, the 4 prostitute is acting in the course of his or her 5 employment or engagement under that contract. 6 Penalty: a fine of $50 000. 7 22. Person acting as prostitute in prostitution business must be 8 licensed or verify identity etc. 9 A person who operates or manages a prostitution business must 10 ensure that a person (the prostitute) does not act as a prostitute 11 for the business unless -- 12 (a) the prostitute holds a current prostitute's licence 13 (general); or 14 (b) an operator of the business is satisfied, and has 15 reasonable grounds to be satisfied -- 16 (i) as to the prostitute's identity; and 17 (ii) that the prostitute has reached 18 years of age; 18 and 19 (iii) that the prostitute is either an Australian citizen 20 or is permanently resident in Australia. 21 Penalty: a fine of $50 000. 22 23. Manager not to act as prostitute on same shift 23 A person who holds a manager's licence and a prostitute's 24 licence (general) must not manage a prostitution business during 25 any period in which the person takes part in, or is available to 26 take part in, an act of prostitution for the prostitution business. 27 Penalty: a fine of $50 000. 28 24. Prostitution business not to operate in licensed premises 29 A person must not operate a prostitution business in licensed 30 premises as defined in the Liquor Control Act 1988 section 3(1). 31 Penalty: a fine of $50 000. page 17 Prostitution Bill 2011 Part 3 Conducting a prostitution business s. 25 1 25. Restrictions on alcohol 2 A person who operates or manages a prostitution business must 3 ensure that -- 4 (a) alcohol is not available for consumption by any client of 5 the business; and 6 (b) no client is permitted to bring alcohol to a place in 7 which the business is conducted. 8 Penalty: a fine of $50 000. 9 26. Limit on number of prostitution businesses to be conducted 10 in a place 11 A self-employed prostitute must not conduct his or her 12 prostitution business in a place if -- 13 (a) a prostitution business other than that of another 14 self-employed prostitute is conducted in the place; or 15 (b) more than one other self-employed prostitute conducts a 16 prostitution business in the place. 17 Penalty: a fine of $50 000. 18 27. Advertising, signage restrictions 19 (1) A person must not publish, place, or seek to place, an 20 advertisement -- 21 (a) for a prostitution business; or 22 (b) to the effect that a particular person is available to act as 23 a prostitute, 24 unless the advertisement is permitted under subsection (2) and 25 whichever of subsection (3) or (4) that applies in the case. 26 Penalty: a fine of $50 000. 27 (2) An advertisement is permitted if it -- 28 (a) appears on a webpage, in a directory or in the classified 29 advertisement section of a newspaper or periodical; and page 18 Prostitution Bill 2011 Conducting a prostitution business Part 3 s. 27 1 (b) does not contain the number for any mobile telephone; 2 and 3 (c) is in accordance with the regulations. 4 (3) An advertisement for a prostitution business other than that of a 5 self-employed prostitute is permitted if it displays the licence 6 number of an operator of the business. 7 (4) An advertisement for one or 2 self-employed prostitutes is 8 permitted if it displays the licence number of each 9 self-employed prostitute who is the subject of the advertisement. 10 (5) It is a defence to a charge of an offence under subsection (1) for 11 the accused to prove that he or she believed on reasonable 12 grounds that the advertisement that is the subject of the charge 13 was not, as is applicable in the case -- 14 (a) for a prostitution business; or 15 (b) to the effect that a particular person is available to act as 16 a prostitute. 17 (6) Subsection (5) -- 18 (a) applies to an accused who is alleged to have published 19 the advertisement that is the subject of the charge; but 20 (b) does not apply to an accused who is alleged to have 21 placed, or to have sought to place, the advertisement that 22 is the subject of the charge. 23 (7) The regulations may provide for the following matters -- 24 (a) the content (whether statements, words or images) that 25 cannot be the subject of, or must be included in -- 26 (i) advertisements mentioned in subsection (1); or 27 (ii) signs for prostitution businesses; 28 (b) the dimensions and colour of advertisements mentioned 29 in subsection (1) that appear in a directory or in the 30 classified advertisement section of a newspaper or 31 periodical; page 19 Prostitution Bill 2011 Part 3 Conducting a prostitution business s. 28 1 (c) the location, display, dimensions and colour of, and 2 material constituting, signs for prostitution businesses; 3 (d) the colour of, and other means of attracting attention in 4 relation to, buildings in which prostitution businesses 5 are conducted. 6 (8) If there is any inconsistency between a local planning scheme as 7 defined in the Planning and Development Act 2005 section 4(1) 8 and a regulation mentioned in subsection (7), the regulation 9 prevails to the extent of the inconsistency. 10 (9) Nothing in this section affects the operation of the Local 11 Government Act 1995 section 3.7. 12 28. Obligations of operators and managers as to information 13 about right of refusal 14 A person who operates or manages a prostitution business must 15 ensure that information is displayed prominently in the place in 16 which the business is conducted regarding the right of a 17 prostitute to refuse to take part in, or continue to take part in, an 18 act of prostitution. 19 Penalty: a fine of $12 000. 20 29. Refusal to work as prostitute does not affect entitlements 21 (1) In this section -- 22 refuse means refuse to take part in acts of prostitution in 23 general, rather than a refusal to take part in a particular act of 24 prostitution or at a particular time. 25 (2) A person's entitlements under the Workers' Compensation and 26 Injury Management Act 1981 may not be lost or affected in any 27 way by his or her being capable of working as a prostitute if he 28 or she refuses to do, or to continue to do, that kind of work. page 20 Prostitution Bill 2011 Minimising risk of acquiring, transmitting sexually transmissible Part 4 infections s. 30 1 Part 4 -- Minimising risk of acquiring, transmitting 2 sexually transmissible infections 3 30. Terms used 4 In this Part -- 5 bodily fluid means semen, vaginal secretions, saliva or blood; 6 sheath means a condom, dam or other physical barrier that -- 7 (a) prevents the transmission of bodily fluid from one 8 person to another; and 9 (b) meets the prescribed standards (if any); 10 STI means a prescribed sexually transmissible infection or a 11 prescribed blood borne virus; 12 STI-risk contact means any of the following -- 13 (a) direct contact between any part of the genital or anal 14 area of one person and any part of the genital or anal 15 area of another person; 16 (b) direct contact between the genital or anal area of one 17 person and the mouth area (including the lips or tongue) 18 of another person. 19 31. Suitable sheath must be provided, used in certain acts of 20 prostitution 21 (1) For the purposes of this section, a sheath is suitable for 22 particular kind of STI-risk contact if it is designed to prevent the 23 bodily fluid of a person having that kind of contact from going 24 on to any part of the body of another person. 25 (2) A person must not take part in an act of prostitution that 26 involves a particular kind of STI-risk contact without using a 27 sheath that is suitable for that kind of contact. 28 Penalty: a fine of $10 000. page 21 Prostitution Bill 2011 Part 4 Minimising risk of acquiring, transmitting sexually transmissible infections s. 32 1 (3) Each person who operates or manages a prostitution business 2 must ensure that there is issued, free of charge, to each 3 prostitute working for the business and to each client sheaths -- 4 (a) that are suitable for each particular kind of STI-risk 5 contact that may be involved in acts of prostitution in 6 which that prostitute and client take part; and 7 (b) in sufficient quantity to ensure that a suitable sheath is 8 available to be used for each particular kind of STI-risk 9 contact that may be involved in acts of prostitution in 10 which that prostitute and client take part. 11 Penalty: a fine of $12 000. 12 (4) Each person who operates or manages a prostitution business 13 must ensure that all reasonable steps are taken to prevent a 14 prostitute working for the business taking part in an act of 15 prostitution that involves a particular kind of STI-risk contact 16 unless the prostitute uses a sheath that is suitable for that kind of 17 contact. 18 Penalty: a fine of $12 000. 19 (5) Subsections (3) and (4) do not apply to a self-employed 20 prostitute. 21 32. No representations as to STI infection status 22 (1) A person must not, for the purpose of taking part in an act of 23 prostitution, state or imply that a medical examination of that 24 person means that he or she is not infected, or is not likely to be 25 infected, with an STI. 26 Penalty: a fine of $10 000. 27 (2) A person who operates a prostitution business must ensure that 28 no person working for the business states or implies that a 29 medical examination of a prostitute working for the business 30 means that the prostitute is not infected, or is not likely to be 31 infected, with an STI. 32 Penalty: a fine of $12 000. page 22 Prostitution Bill 2011 Minimising risk of acquiring, transmitting sexually transmissible Part 4 infections s. 33 1 (3) A person who manages a prostitution business must not state or 2 imply that a medical examination of a prostitute working for the 3 business means that the prostitute is not infected, or is not likely 4 to be infected, with an STI. 5 Penalty: a fine of $12 000. 6 (4) Subsection (1) applies to a self-employed prostitute but 7 subsections (2) and (3) do not. 8 33. Prohibition on certain acts of prostitution for persons with 9 STI 10 (1) A person who knows, or could reasonably be expected to know, 11 that he or she has an STI must not take part in an act of 12 prostitution involving STI-risk contact. 13 Penalty: 14 (a) for a first offence, a fine of $20 000; 15 (b) for a second or subsequent offence, imprisonment for 16 3 years. 17 (2) A person must not permit or encourage another person to act as 18 a prostitute and engage in an act of prostitution involving 19 STI-risk contact if the first-mentioned person knows, or could 20 reasonably be expected to know, that the other person has an 21 STI. 22 Penalty: 23 (a) for a first offence, a fine of $20 000; 24 (b) for a second or subsequent offence, imprisonment for 25 3 years. 26 (3) It is a defence to a charge of an offence under subsection (2) for 27 the accused to prove that he or she exercised all due diligence as 28 ought to have been exercised having regard to the nature of the 29 accused's functions in a prostitution business and to all the 30 circumstances to prevent a person whom the accused knows, or 31 could reasonably be expected to know, has an STI, from acting 32 as a prostitute for the prostitution business. page 23 Prostitution Bill 2011 Part 4 Minimising risk of acquiring, transmitting sexually transmissible infections s. 34 1 (4) For the purposes of subsection (1) and (2) it makes no 2 difference whether or not a sheath is used in the act of 3 prostitution involving STI-risk contact. 4 34. Further minimising risk of STI acquisition, transmission 5 (1) A person who takes part in an act of prostitution must take all 6 other reasonable steps to minimise the risk of acquiring or 7 transmitting an STI. 8 Penalty: a fine of $10 000. 9 (2) Each person who operates or manages a prostitution business 10 must ensure that all other reasonable steps are taken to minimise 11 the risk of a prostitute working for the business, or in the case of 12 a self-employed prostitute, himself or herself, or a client of the 13 business acquiring or transmitting an STI. 14 Penalty: 15 (a) if the person is a self-employed prostitute, a fine of 16 $10 000; 17 (b) otherwise, a fine of $12 000. 18 35. Obligations of operators and managers as to health 19 information 20 (1) In this section -- 21 health information means information -- 22 (a) about minimising the risk of acquiring or transmitting 23 STIs and the treatment of STIs; and 24 (b) that has been provided or recommended by the 25 department of the Public Service principally assisting in 26 the administration of the Health Act 1911 or an Act that 27 repeals and substantially replaces that Act. 28 (2) Each person who operates or manages a prostitution business -- 29 (a) must ensure that all reasonable steps are taken to give 30 health information (whether oral or written) to clients of 31 the business; and page 24 Prostitution Bill 2011 Minimising risk of acquiring, transmitting sexually transmissible Part 4 infections s. 35 1 (b) except in the case of a self-employed prostitute, must 2 ensure that all reasonable steps are taken to give health 3 information (whether oral or written) to prostitutes 4 working for the business; and 5 (c) must ensure that health information is displayed 6 prominently in the place in which the business is 7 conducted. 8 Penalty: a fine of $10 000. page 25 Prostitution Bill 2011 Part 5 Children s. 36 1 Part 5 -- Children 2 36. Causing, permitting or seeking to induce child to act as 3 prostitute 4 (1) A person must not cause or permit a child to act, or continue to 5 act, as a prostitute. 6 (2) A person must not do anything with the intention of inducing a 7 child to act, or continue to act, as a prostitute. 8 (3) A person who contravenes subsection (1) or (2) is guilty of a 9 crime. 10 Penalty: imprisonment for 14 years. 11 37. Obtaining payment for prostitution by child 12 (1) A person must not receive a payment, in money or any other 13 form, knowing that it or any part of it has been derived, directly 14 or indirectly, from a child taking part in an act of prostitution, 15 whether as a prostitute or as a client. 16 (2) A person who contravenes subsection (1) is guilty of a crime. 17 Penalty: imprisonment for 14 years. 18 (3) It is a defence to a charge of an offence under subsection (1) for 19 the accused to prove that the payment was received in the 20 ordinary course of a business unrelated to prostitution. 21 38. Agreement for prostitution by child 22 (1) A person must not enter into, or offer to enter into, an 23 agreement under which a child is to act as a prostitute, whether 24 for that person or anyone else. 25 (2) A person who contravenes subsection (1) is guilty of a crime. 26 Penalty: imprisonment for 14 years. page 26 Prostitution Bill 2011 Children Part 5 s. 39 1 39. Prostitution in place where child present 2 (1) A person must not take part, whether as a prostitute or as a 3 client, in an act of prostitution in a place where the person 4 knows that a child is present. 5 Penalty: 6 (a) for a first offence, a fine of $24 000; 7 (b) for a second or subsequent offence, imprisonment for 8 3 years. 9 (2) For the purposes of subsection (1), the place extends as far as 10 the limits up to which either a prostitute or a client taking part in 11 the act of prostitution exercises, or is able to exercise, control 12 over who is allowed to be there. 13 (3) It makes no difference whether control is, or is able to be, 14 exercised solely or in common with others. 15 40. Allowing child to be in place involving prostitution 16 A person must not allow a child to enter or remain in a place in 17 which the person knows or could be reasonably expected to 18 know -- 19 (a) an act of prostitution is, or may be, taking place; or 20 (b) a prostitution business is being conducted. 21 Penalty: 22 (a) for a first offence, a fine of $24 000; 23 (b) for a second or subsequent offence, imprisonment for 24 3 years. 25 41. Obligations of prostitution business operators in relation to 26 children 27 (1) A person who operates a prostitution business must ensure that 28 a child does not work as a prostitute for the business. page 27 Prostitution Bill 2011 Part 5 Children s. 42 1 (2) A person who contravenes subsection (1) is guilty of a crime. 2 Penalty: imprisonment for 5 years. 3 Summary conviction penalty: imprisonment for 3 years. 4 (3) A person who operates or manages a prostitution business must 5 ensure that no child is present in a place at which an act of 6 prostitution is, or may be, taking place for the business. 7 Penalty: 8 (a) for a first offence, a fine of $24 000; 9 (b) for a second or subsequent offence, imprisonment for 10 3 years. 11 42. Acting as prostitute for child 12 A person must not act as a prostitute for a client who is a child. 13 Penalty: imprisonment for 9 months. 14 43. Child not to seek services of prostitute 15 (1) A child must not seek another person to act as a prostitute. 16 Penalty: a fine of $2 000. 17 (2) For the purposes of subsection (1), a child seeks another person 18 to act as a prostitute if the child -- 19 (a) invites or requests another person to act as a prostitute; 20 or 21 (b) loiters in or frequents a place for the purpose of, or with 22 the intention of -- 23 (i) inviting or requesting another person to act as a 24 prostitute; or 25 (ii) receiving an invitation for another person to act 26 as a prostitute. 27 (3) It makes no difference -- 28 (a) whether or not the child is the prospective client; or page 28 Prostitution Bill 2011 Children Part 5 s. 43 1 (b) whether or not a particular person is sought to act as a 2 prostitute; or 3 (c) whether the child makes or intends to make the 4 invitation or request directly or through someone else to, 5 or intends to receive the invitation directly or through 6 someone else from, the person whom the child seeks to 7 act as a prostitute. page 29 Prostitution Bill 2011 Part 6 Licensing Division 1 Preliminary s. 44 1 Part 6 -- Licensing 2 Division 1 -- Preliminary 3 44. Terms used 4 In this Part -- 5 health and drug management plan, in relation to a prostitution 6 business or a proposed prostitution business, means a document 7 setting out -- 8 (a) the steps that will be taken to minimise the risk of any 9 prostitute working for the business, and any client of the 10 business, acquiring or transmitting an STI as defined in 11 section 30; and 12 (b) how it is proposed to prevent, monitor and deal with the 13 use of prohibited drugs in the place in which the 14 business is conducted; 15 incapable person means a person who, because of intellectual 16 disability, mental illness, brain damage or senility -- 17 (a) is incapable of understanding the nature and effect of an 18 act of prostitution; or 19 (b) is incapable of guarding himself or herself against 20 sexual exploitation; or 21 (c) in relation to a pending charge against an accused 22 person, is incapable of understanding the nature of the 23 act that is the subject of the charge; 24 officer, in relation to a company, means a person who is a 25 director, secretary or shareholder of the company; 26 responsible planning authority, in relation to a place, means the 27 responsible planning authority, as defined in section 79, for the 28 planning scheme, as defined in that section, that applies to the 29 place. page 30 Prostitution Bill 2011 Licensing Part 6 Licences required for certain activities involving prostitution Division 2 s. 45 1 Division 2 -- Licences required for certain activities 2 involving prostitution 3 45. Operators to be licensed 4 (1) A person who is an individual must not operate a prostitution 5 business in a place unless -- 6 (a) he or she holds a current operator's licence for the 7 business and the licence applies to the place; and 8 (b) each other individual with whom the person operates the 9 business holds a current operator's licence for the 10 business and the licence applies to the place. 11 Penalty: a fine of $50 000 or imprisonment for 3 years. 12 (2) Subsection (1) does not apply to a self-employed prostitute. 13 (3) It is a defence to a charge of an offence under subsection (1) for 14 the accused to prove that at the time the accused was operating 15 the prostitution business at the place -- 16 (a) the accused was an officer of a company; and 17 (b) the company held a current operator's licence for the 18 business and the licence applied to the place. 19 (4) A company must not operate a prostitution business in a place 20 unless -- 21 (a) it is a proprietary company; and 22 (b) all of its officers are individuals; and 23 (c) either -- 24 (i) it is the sole operator of the business; or 25 (ii) it operates the business with no person other than 26 an officer of the company; 27 and 28 (d) it holds a current operator's licence for the business and 29 the licence applies to the place. 30 Penalty: a fine of $250 000. page 31 Prostitution Bill 2011 Part 6 Licensing Division 2 Licences required for certain activities involving prostitution s. 46 1 46. Managers to be licensed 2 (1) A person must not manage a prostitution business unless he or 3 she holds a current manager's licence. 4 Penalty: a fine of $50 000 or imprisonment for 3 years. 5 (2) Subsection (1) does not apply to a self-employed prostitute. 6 47. Prostitutes to be licensed or to verify identity etc. for 7 operator 8 (1) A person who has reached 18 years of age must not act as a 9 prostitute in a place unless -- 10 (a) a current operator's licence applies to the place and 11 either -- 12 (i) the person holds a current prostitute's licence 13 (general); or 14 (ii) there has been compliance with section 22(b) in 15 respect of the person; 16 or 17 (b) the person holds a current prostitute's licence 18 (self-employed) and the licence applies to the place. 19 Penalty: a fine of $6 000. 20 (2) A self-employed prostitute must not operate a prostitution 21 business in a place unless he or she holds a current prostitute's 22 licence (self-employed) for the business and the licence applies 23 to the place. 24 Penalty: a fine of $6 000. 25 48. Limiting numbers of licences that may be issued for areas, 26 periods 27 The regulations may provide for -- 28 (a) the maximum number of each kind of licence that can be 29 issued whether generally or for a particular area of the 30 State or during a particular period; and page 32 Prostitution Bill 2011 Licensing Part 6 Licence applications Division 3 s. 49 1 (b) the procedure for determining which persons are to be 2 issued licences if the number of eligible persons seeking 3 a licence exceeds the number of licences that can be 4 issued. 5 Division 3 -- Licence applications 6 49. Application for operator's licence or renewal 7 (1) An application for the issue or renewal of an operator's licence 8 for a prostitution business that is proposed to be, or is, operated 9 by -- 10 (a) one individual, must be made by that individual; or 11 (b) more than one individual, can be made only if the 12 applicant is one of those individuals. 13 (2) An application for the issue or renewal of an operator's licence 14 for a prostitution business that is proposed to be, or is, operated 15 by a company -- 16 (a) must be made by at least one officer of the company, on 17 behalf of the company; and 18 (b) may be made by more than one officer, on behalf of the 19 company. 20 (3) An application for the issue or renewal of an operator's licence 21 for a prostitution business must -- 22 (a) be made to the CEO in a manner and form approved by 23 the CEO; and 24 (b) be accompanied by any document or information 25 specified in the form for either or both of the 26 following -- 27 (i) verifying the applicant's identity and age; 28 (ii) relating to any other applicable matter referred to 29 in section 55; 30 and page 33 Prostitution Bill 2011 Part 6 Licensing Division 3 Licence applications s. 50 1 (c) be accompanied by the health and drug management 2 plan for the business; and 3 (d) give details of the applicant's residential and contact 4 addresses; and 5 (e) be accompanied by the prescribed fee (if any). 6 (4) An application for the issue of an operator's licence for a 7 prostitution business must also -- 8 (a) state the address of the place in which the prostitution 9 business is proposed to be conducted (the place); and 10 (b) state that the proposed prostitution business will involve 11 one or more persons taking part in, or available to take 12 part in, acts of prostitution only in the place and not 13 elsewhere; and 14 (c) be accompanied by evidence of the responsible planning 15 authority's approval for the prostitution business to be 16 conducted in the place; and 17 (d) for a prostitution business proposed to be operated by 18 2 or more individuals, state the name and address of 19 each other individual with whom the applicant proposes 20 to operate the prostitution business; and 21 (e) for a prostitution business proposed to be operated by a 22 company, state the name and address of each other 23 person with whom the company proposes to operate the 24 prostitution business. 25 50. Application for manager's licence or renewal 26 (1) An applicant for the issue or renewal of a manager's licence 27 must be an individual. 28 (2) An application for the issue or renewal of a manager's licence 29 must -- 30 (a) be made to the CEO in a manner and form approved by 31 the CEO; and page 34 Prostitution Bill 2011 Licensing Part 6 Licence applications Division 3 s. 51 1 (b) be accompanied by any document or information 2 specified in the form for either or both of the 3 following -- 4 (i) verifying the applicant's identity and age; 5 (ii) relating to any other applicable matter referred to 6 in section 57; 7 and 8 (c) give details of the applicant's residential and contact 9 addresses; and 10 (d) be accompanied by the prescribed fee (if any). 11 51. Application for prostitute's licence or renewal 12 (1) An applicant for the issue or renewal of a prostitute's licence 13 (general) or a prostitute's licence (self-employed) must be an 14 individual. 15 (2) An application for the issue or renewal of a prostitute's licence 16 (general) or a prostitute's licence (self-employed) must -- 17 (a) be made to the CEO in a manner and form approved by 18 the CEO; and 19 (b) be accompanied by any document or information 20 specified in the form for either or both of the 21 following -- 22 (i) verifying the applicant's identity and age; 23 (ii) relating to any other applicable matter referred to 24 in section 58; 25 and 26 (c) be accompanied by the prescribed fee (if any). 27 (3) An application for the issue of a prostitute's licence 28 (self-employed) must also -- 29 (a) state the address of the place in which the prostitution 30 business is proposed to be conducted (the place); and page 35 Prostitution Bill 2011 Part 6 Licensing Division 3 Licence applications s. 52 1 (b) state whether or not another self-employed prostitute 2 will conduct a prostitution business in the place; and 3 (c) state that the applicant exercises, or is able to exercise, 4 (whether solely or in common with others) control over 5 who is allowed to be in the place; and 6 (d) state that the proposed prostitution business will involve 7 the applicant (but no other prostitute) taking part in acts 8 of prostitution with clients of the business, only in the 9 place and not elsewhere; and 10 (e) be accompanied by evidence of the responsible planning 11 authority's approval for the prostitution business to be 12 conducted in the place. 13 (4) An application for the issue or renewal of a prostitute's licence 14 (self-employed) must also be accompanied by the health and 15 drug management plan for the prostitution business. 16 52. Taking of fingerprints and palm prints 17 (1) In this section -- 18 applicant, in the case of an application for the issue or renewal 19 of an operator's licence made by an officer of a company, 20 includes -- 21 (a) each other applicant (if any); and 22 (b) each other person who is an officer of the company, 23 and in the case of an application for the renewal of an operator's 24 licence includes each new officer of the company about whom 25 the CEO is notified under section 71(1). 26 (2) The CEO may in writing require an applicant for the issue or 27 renewal of a licence to attend a place and there have his or her 28 fingerprints and palm prints taken by -- 29 (a) a police officer; or 30 (b) a person of a class specified in the regulations for the 31 purposes of this subsection. page 36 Prostitution Bill 2011 Licensing Part 6 Licence applications Division 3 s. 52 1 (3) Subsection (2) does not apply to an applicant for the issue or 2 renewal of a prostitute's licence (general) or a prostitute's 3 licence (self-employed) unless the CEO reasonably suspects that 4 a matter relating to the applicant's identity has not been 5 disclosed in the application. 6 (4) The CEO does not have to consider an application, or consider 7 it further, until there is compliance with each requirement under 8 subsection (2) relevant to the application. 9 (5) An application for the issue or renewal of a licence must set out 10 an election to be made by the applicant as to whether any 11 fingerprints and palm prints taken from the applicant under this 12 section, and any copy of them -- 13 (a) can be kept by the Commissioner indefinitely; or 14 (b) must be dealt with in accordance with subsections (9) 15 and (10). 16 (6) The fingerprints and palm prints of an applicant who makes an 17 election referred to in subsection (5)(a) must be kept by the 18 Commissioner in accordance with that election and, unless the 19 applicant subsequently changes the election, subsections (9) 20 and (10) do not apply in respect of those prints or copies. 21 (7) Before making an election referred to in subsection (5) the 22 applicant must be informed as to the following matters -- 23 (a) that the prints taken may be compared with or put in a 24 forensic database, as defined in the Criminal 25 Investigation (Identifying People) Act 2002 section 61; 26 (b) that the prints taken may provide evidence that could be 27 used in court against the applicant; 28 (c) that the applicant may subsequently change an election 29 made under subsection (5) by notifying the 30 Commissioner; 31 (d) that the applicant may obtain legal advice before 32 deciding whether or not to have the prints taken and 33 making an election under subsection (5); page 37 Prostitution Bill 2011 Part 6 Licensing Division 3 Licence applications s. 53 1 (e) such other matters as may be prescribed. 2 (8) The information in subsection (7) may be provided in writing. 3 (9) If an election is made under subsection (5)(b), then the 4 Commissioner must cause fingerprints and palm prints taken 5 under this section and any copy of them to be destroyed -- 6 (a) if the relevant licence is not granted or renewed; or 7 (b) when the relevant licence ceases to have effect. 8 (10) If a review is available under section 153, the destruction of 9 fingerprints and palm prints under subsection (9) is not required 10 until -- 11 (a) the time for applying for a review has expired; and 12 (b) if an application for a review is made, it has been 13 determined in a way that does not result in the issue or 14 continuation of the relevant licence. 15 (11) If a person subsequently changes an election made under 16 subsection (5) and elects that prints taken must be dealt with in 17 accordance with subsections (9) and (10), and the time for 18 destroying the prints under those provisions has already passed, 19 the Commissioner must cause the prints and any copy of them 20 to be destroyed as soon as is practicable after the election is 21 changed. 22 (12) The CEO must provide the Commissioner with any information 23 that the Commissioner requires to comply with subsection (11). 24 53. Further information relevant to application 25 (1) An applicant for the issue or renewal of a licence must provide 26 the CEO with any additional document or information that the 27 CEO requires, in any particular case, that is or could be relevant 28 to making a decision on the application. 29 (2) If the CEO requires under subsection (1) that an additional 30 document or information be provided, the CEO does not have to 31 consider the application, or consider it further, until the 32 applicant complies with the requirement. page 38 Prostitution Bill 2011 Licensing Part 6 Licence applications Division 3 s. 54 1 54. Report of Commissioner 2 (1) The CEO must send to the Commissioner a copy of each 3 application for the issue or renewal of a licence and request a 4 report on the eligibility and suitability -- 5 (a) of the proposed or current licence holder to hold the 6 licence that is the subject of the application; and 7 (b) of each applicant as defined in section 52(1) to operate 8 the prostitution business that is the subject of the 9 application. 10 (2) Subsection (1) does not apply to an application for the issue or 11 renewal of a prostitute's licence (general) or a prostitute's 12 licence (self-employed) unless the CEO reasonably suspects that 13 the applicant may not be eligible or suitable to hold the licence. 14 (3) The Commissioner must provide a report to the CEO as soon as 15 practicable after receipt of the copy of the application or such 16 longer period as is agreed between the Commissioner and the 17 CEO. 18 55. Issue, renewal of operator's licence 19 (1) Subsections (2), (3), (4) and (5) apply to an application for the 20 issue or renewal of an operator's licence for a prostitution 21 business. 22 (2) The CEO may, on an application, issue or renew an operator's 23 licence if satisfied that each applicant -- 24 (a) has complied with section 49; and 25 (b) is an individual who has reached 18 years of age; and 26 (c) is either an Australian citizen or is permanently resident 27 in Australia; and 28 (d) is ordinarily resident in Western Australia; and 29 (e) will not hold a manager's licence during the currency of 30 the operator's licence if issued or renewed; and page 39 Prostitution Bill 2011 Part 6 Licensing Division 3 Licence applications s. 55 1 (f) will not hold a prostitute's licence (general) or a 2 prostitute's licence (self-employed) during the currency 3 of the operator's licence if issued or renewed; and 4 (g) is not the subject of a violence restraining order as 5 defined in the Restraining Orders Act 1997 section 3; 6 and 7 (h) complies with any other prescribed matter. 8 (3) The CEO may, on an application, issue or renew an operator's 9 licence if satisfied that each applicant and, in the case of an 10 application on behalf of a company, the company -- 11 (a) has not had any licence issued under this Act revoked 12 within the period of 5 years ending on the day on which 13 the application is made; and 14 (b) has no charge pending of an alleged offence under the 15 law of this State, the Commonwealth, another State or a 16 Territory that involves an act of violence against the 17 person or involves a victim who was a child or incapable 18 person; and 19 (c) has not been declared under the Misuse of Drugs 20 Act 1981 section 32A to be a drug trafficker; and 21 (d) has not been found guilty of an offence -- 22 (i) set out in Schedule 1; or 23 (ii) under the law of the Commonwealth, another 24 State or a Territory, that the CEO considers to be 25 substantially similar to an offence set out in 26 Schedule 1; 27 and 28 (e) has not been convicted, in this or another State or a 29 Territory, of any indictable offence, including an offence 30 under a law of the Commonwealth, any other State or a 31 Territory, that is triable by jury that the CEO considers 32 would make it inappropriate for the CEO to issue the 33 licence; and 34 (f) is a person suitable to hold an operator's licence; and page 40 Prostitution Bill 2011 Licensing Part 6 Licence applications Division 3 s. 55 1 (g) complies with any other prescribed matter. 2 (4) The CEO may, on an application, issue or renew an operator's 3 licence if satisfied that the health and drug management plan for 4 the prostitution business or proposed prostitution business is 5 appropriate. 6 (5) The CEO may, on an application, issue or renew an operator's 7 licence if satisfied that the application complies with any other 8 prescribed matter. 9 (6) The CEO may issue an operator's licence to, or renew the 10 operator's licence of, a company if the CEO is satisfied that the 11 company complies with section 45(4)(a) and (b) and will 12 comply with section 45(4)(c) during the currency of the 13 operator's licence if issued or renewed. 14 (7) On an application for the issue of an operator's licence for a 15 prostitution business the CEO may issue an operator's licence if 16 satisfied that -- 17 (a) the proposed prostitution business will involve one or 18 more persons taking part in, or available to take part in, 19 acts of prostitution only in the place stated in the 20 application under section 49(4)(a) and not elsewhere; 21 and 22 (b) the responsible planning authority has given its approval 23 for the prostitution business to be conducted in that 24 place; and 25 (c) the approval is in accordance with the provisions of 26 Division 8. 27 (8) On an application by or on behalf of a person for the person's 28 first operator's licence for a prostitution business the CEO may 29 issue the operator's licence if satisfied that neither the person 30 nor any applicant will hold an operator's licence for another 31 prostitution business during the currency of the operator's 32 licence if issued. page 41 Prostitution Bill 2011 Part 6 Licensing Division 3 Licence applications s. 56 1 (9) If an application for the issue or renewal of an operator's licence 2 is made by one or more officers of a company on behalf of the 3 company, the CEO may issue or renew the licence if satisfied, 4 with respect to each other person who is an officer of the 5 company -- 6 (a) of any matter referred to in this section of which the 7 CEO would need to be satisfied if that person were an 8 applicant; and 9 (b) that each of those persons who has been required under 10 section 52(2) to have his or her fingerprints or palm 11 prints taken has complied with the requirement. 12 (10) The CEO must not renew an operator's licence if, since the 13 licence was issued or most recently renewed, the land that is 14 used for the purposes of the prostitution business to which the 15 licence relates has become part of a residential area as defined 16 in section 79. 17 (11) The CEO must not issue or renew an operator's licence unless 18 the CEO is satisfied as to each of the matters referred to in this 19 section that applies to the particular application. 20 56. One person may hold up to 3 operator's licences 21 A separate operator's licence may be issued to one person for 22 2 or 3 prostitution businesses operated by the person if the first 23 operator's licence held by the person has been renewed and 24 none of the following persons has been convicted of an offence 25 under this Act -- 26 (a) each operator of the business; 27 (b) if the operator is a company, each of its officers; 28 (c) each manager of the business. 29 57. Issue, renewal of manager's licence 30 (1) On an application for the issue or renewal of a manager's 31 licence, the CEO may issue or renew the licence if satisfied 32 that -- 33 (a) the applicant has complied with section 50; and page 42 Prostitution Bill 2011 Licensing Part 6 Licence applications Division 3 s. 57 1 (b) the applicant is an individual who has reached 18 years 2 of age; and 3 (c) the applicant is either an Australian citizen or is 4 permanently resident in Australia; and 5 (d) the applicant is ordinarily resident in Western Australia; 6 and 7 (e) the applicant will not hold, or be an applicant for, an 8 operator's licence during the currency of the manager's 9 licence if issued or renewed; and 10 (f) the applicant has not had any licence issued under this 11 Act revoked within the period of 5 years ending on the 12 day on which the application is made; and 13 (g) the applicant has no charge pending of an alleged 14 offence under the law of this State, the Commonwealth, 15 another State or a Territory that involves an act of 16 violence against the person or involves a victim who 17 was a child or incapable person; and 18 (h) the applicant has not been declared under the Misuse of 19 Drugs Act 1981 section 32A to be a drug trafficker; and 20 (i) the applicant has not been found guilty of an offence -- 21 (i) set out in Schedule 1; or 22 (ii) under the law of the Commonwealth, another 23 State or a Territory, that the CEO considers to be 24 substantially similar to an offence set out in 25 Schedule 1; 26 and 27 (j) the applicant has not been convicted, in this or another 28 State or a Territory, of any indictable offence, including 29 an offence under a law of the Commonwealth, any other 30 State or a Territory, that is triable by jury that the CEO 31 considers would make it inappropriate for the CEO to 32 issue the licence; and page 43 Prostitution Bill 2011 Part 6 Licensing Division 3 Licence applications s. 58 1 (k) the applicant is not the subject of a violence restraining 2 order as defined in the Restraining Orders Act 1997 3 section 3; and 4 (l) the applicant is a person suitable to hold a manager's 5 licence; and 6 (m) the applicant complies with any other prescribed matter; 7 and 8 (n) the application complies with any other prescribed 9 matter. 10 (2) The CEO must not issue or renew a manager's licence unless 11 the CEO is satisfied as to each of the matters referred to in this 12 section that applies to the particular application. 13 58. Issue, renewal of prostitute's licence 14 (1) On an application for the issue or renewal of a prostitute's 15 licence (general) or a prostitute's licence (self-employed), the 16 CEO may issue or renew the licence if satisfied that -- 17 (a) the applicant has complied with section 51; and 18 (b) the applicant is an individual who has reached 18 years 19 of age; and 20 (c) the applicant is either an Australian citizen or is 21 permanently resident in Australia; and 22 (d) the applicant will not hold an operator's licence during 23 the currency of the prostitute's licence (general) or a 24 prostitute's licence (self-employed) if issued or 25 renewed; and 26 (e) the applicant has not had any licence issued under this 27 Act revoked within the period of 5 years ending on the 28 day on which the application is made; and 29 (f) the applicant is a person suitable to hold the licence that 30 is the subject of the application; and 31 (g) the applicant complies with any other prescribed matter; 32 and page 44 Prostitution Bill 2011 Licensing Part 6 Licence applications Division 3 s. 59 1 (h) the application complies with any other prescribed 2 matter. 3 (2) On an application for the issue of a prostitute's licence 4 (self-employed) the CEO may issue the licence if satisfied 5 that -- 6 (a) no more than one other self-employed prostitute will 7 conduct a prostitution business in the place stated in the 8 application under section 51(3)(a) (the place); and 9 (b) the proposed prostitution business will involve the 10 applicant (but no other prostitute) taking part in acts of 11 prostitution with clients of the business, only in the 12 place and not elsewhere; and 13 (c) the applicant exercises, or is able to exercise, (whether 14 solely or in common with others) control over who is 15 allowed to be in the place; and 16 (d) the responsible planning authority has given its approval 17 for the prostitution business to be conducted in the 18 place; and 19 (e) the approval is in accordance with the provisions of 20 Division 8. 21 (3) On an application for the issue or renewal of a prostitute's 22 licence (self-employed) the CEO may issue or renew the licence 23 if satisfied that the health and drug management plan for the 24 prostitution business or proposed prostitution business is 25 appropriate. 26 (4) The CEO must not issue or renew a prostitute's licence 27 (general) or a prostitute's licence (self-employed) unless the 28 CEO is satisfied as to each of the matters referred to in this 29 section that applies to the particular application. 30 59. Reasons for refusal to issue, renew licence 31 (1) The CEO must -- 32 (a) record the grounds on which a decision to refuse to issue 33 or renew a licence is based, and the reasons for the 34 decision; and page 45 Prostitution Bill 2011 Part 6 Licensing Division 4 Licence conditions s. 60 1 (b) as soon as is practicable after making the decision, give 2 to the person to whom the decision relates written notice 3 of the decision, together with those grounds and reasons, 4 and the person's right of review under section 153. 5 (2) Nothing in subsection (1) requires or authorises the CEO to 6 disclose confidential police information. 7 Division 4 -- Licence conditions 8 60. Conditions generally 9 (1) A licence is subject to -- 10 (a) any conditions imposed by the CEO under section 64; 11 and 12 (b) any other conditions imposed under this Act. 13 (2) The regulations may provide for conditions of licences. 14 61. Condition as to change of location of business 15 (1) It is a condition of every operator's licence and every 16 prostitute's licence (self-employed) that there must be no 17 change in the location of the place in which the prostitution 18 business to which the licence applies is conducted without the 19 approval of the CEO. 20 (2) An application for the CEO's approval under subsection (1) 21 must be accompanied by -- 22 (a) evidence of the responsible planning authority's 23 approval for the prostitution business to be conducted in 24 the new place; and 25 (b) the prescribed fee (if any). 26 (3) The CEO must not approve a change in the location of the place 27 in which the prostitution business is conducted unless the CEO 28 is satisfied that -- 29 (a) the responsible planning authority has given its approval 30 for the prostitution business to be conducted in the new 31 place; and page 46 Prostitution Bill 2011 Licensing Part 6 Licence conditions Division 4 s. 62 1 (b) the approval is in accordance with the requirements of 2 Division 8; and 3 (c) it is otherwise appropriate to approve the change. 4 62. Conditions as to size of business 5 It is a condition of every operator's licence that -- 6 (a) the place in which the prostitution business to which the 7 licence applies is conducted must not have more than 8 the prescribed number of rooms in which persons may 9 take part in acts of prostitution; and 10 (b) no more than the prescribed number of persons act, or 11 are available to act, as prostitutes in the place at the 12 same time. 13 63. Conditions of operator's licences as to records to be kept 14 (1) In this section -- 15 business, in relation to an operator, means the prostitution 16 business to which the operator's licence applies. 17 (2) It is a condition of every operator's licence that the operator 18 must ensure that there is kept, for the prescribed period -- 19 (a) a record of the licence number of each licensed 20 prostitute who enters into a contract of service with, or 21 is engaged to work for the purposes of the business 22 under a contract for services by, a person who operates 23 the business; and 24 (b) a copy of the licence of each prostitute mentioned in 25 paragraph (a); and 26 (c) a record of the name, date of birth and residency status 27 of each unlicensed prostitute who enters into a contract 28 of service with, or is engaged to work for the purposes 29 of the business under a contract for services by, a person 30 who operates the business; and 31 (d) a record of the start and finish dates for each contract 32 mentioned in paragraph (a) or (c). page 47 Prostitution Bill 2011 Part 6 Licensing Division 4 Licence conditions s. 64 1 (3) It is a condition of every operator's licence that the operator 2 must ensure that -- 3 (a) there is kept a paper copy of each document that 4 provides proof of the name, date of birth and residency 5 status of each unlicensed prostitute mentioned in 6 subsection (2)(c); and 7 (b) no copy of the document is made or kept in electronic 8 form; and 9 (c) the copy is kept secure from unauthorised access; and 10 (d) the copy is kept for the period that expires 3 months 11 after the last day on which the unlicensed prostitute 12 worked for the business; and 13 (e) the copy is destroyed on the expiration of that period. 14 (4) It is a condition of every operator's licence mentioned in 15 subsection (2) or (3) that the operator must ensure that any 16 record or document kept as required under either of those 17 subsections can be inspected at any time by, and on the request 18 of, the CEO, an authorised person as defined in section 92 or a 19 police officer. 20 (5) A request mentioned in subsection (4) must not be made unless 21 it is made for compliance purposes as defined in section 101(1). 22 64. Conditions imposed by CEO 23 (1) The CEO may impose conditions on a licence -- 24 (a) when issuing or renewing the licence; or 25 (b) during the currency of the licence. 26 (2) The CEO may vary or revoke conditions imposed under this 27 section on the CEO's own initiative or on application of the 28 licence holder. 29 (3) An application of a licence holder must be accompanied by the 30 prescribed fee (if any). page 48 Prostitution Bill 2011 Licensing Part 6 Licence conditions Division 4 s. 65 1 (4) Without affecting the generality of the CEO's discretion to 2 impose conditions under this section, the CEO may impose 3 conditions -- 4 (a) as to the maximum number of staff that may, at the same 5 time, be in a place in which a prostitution business is 6 being conducted; or 7 (b) which the CEO considers to be in the public interest; or 8 (c) which the CEO considers desirable in order to minimise 9 the offence, annoyance, disturbance or inconvenience 10 that might be caused to those who reside or work in the 11 vicinity of the place at which the prostitution business is 12 conducted, or to persons in or making their way to or 13 from a place of public worship, hospital or school, in 14 consequence of activities in the place or the conduct of 15 those making their way to or from the place. 16 (5) The imposition, variation or revocation of a condition during the 17 currency of the registration of a person does not take effect until 18 written notice, including reasons for the decision, and notice of 19 the person's right of review under section 153, has been given 20 to the person. 21 (6) Nothing in subsection (5) requires or authorises the CEO to 22 disclose confidential police information. 23 65. Compliance with conditions 24 (1) A person to whom a licence is issued must not contravene a 25 condition of the licence. 26 Penalty: a fine of $50 000. 27 (2) Each officer of a company that holds an operator's licence must 28 ensure that the conditions of the licence are not contravened. 29 Penalty: a fine of $50 000. page 49 Prostitution Bill 2011 Part 6 Licensing Division 5 Other matters about licences s. 66 1 Division 5 -- Other matters about licences 2 66. Duration of licence 3 (1) A licence may be issued or renewed for a period not exceeding 4 3 years. 5 (2) The duration of a licence must be stated in the licence. 6 (3) If a licence is renewed after, but within 28 days of, the day on 7 which it expired, the renewal is to be taken for all purposes to 8 have taken effect on the day immediately after the day on which 9 the licence expired. 10 67. Licence not transferable 11 A licence is not transferable. 12 68. Register of licence holders 13 (1) The CEO must keep an accurate and up-to-date register, in such 14 manner and form as the CEO determines, of all holders of -- 15 (a) current and former operator's licences; and 16 (b) current and former manager's licences; and 17 (c) current prostitute's licences (general); and 18 (d) current prostitute's licences (self-employed). 19 (2) In respect of each licence holder mentioned in subsection (1)(a) 20 and (b) the CEO must record -- 21 (a) the name of the licence holder; and 22 (b) the business address or other address of the licence 23 holder; and 24 (c) the conditions imposed under section 64 that are current; 25 and 26 (d) details of the suspension or revocation of a licence of the 27 licence holder under section 73; and 28 (e) such other information, if any, as is prescribed. page 50 Prostitution Bill 2011 Licensing Part 6 Other matters about licences Division 5 s. 69 1 (3) In respect of each licence holder mentioned in subsection (1)(a) 2 the CEO must also record -- 3 (a) the name and address of any other individual with whom 4 the operator, if an individual, operates or operated the 5 operator's prostitution business; and 6 (b) the address of the place in which the operator's 7 prostitution business is or was conducted. 8 (4) In respect of each licence holder mentioned in subsection (1)(c) 9 and (d) the CEO must record -- 10 (a) the name of the licence holder; and 11 (b) the conditions imposed under section 64 that are current; 12 and 13 (c) details of the suspension or revocation of a licence of the 14 licence holder under section 73; and 15 (d) in the case of a self-employed prostitute, the address of 16 the place in which the prostitution business is 17 conducted; and 18 (e) such other information, if any, as is prescribed. 19 (5) The CEO must cause to be removed from the register all the 20 details about the holder of a prostitute's licence (general) or a 21 prostitute's licence (self-employed) that no longer has effect as 22 soon as practicable after the licence ceases to have effect. 23 (6) Subsection (5) applies despite any requirement under the State 24 Records Act 2000 in relation to the keeping and destruction of 25 records. 26 69. Inspection of register 27 (1) In this section -- 28 officer means -- 29 (a) a police officer; or 30 (b) a person of a class specified in the regulations for the 31 purposes of this definition. page 51 Prostitution Bill 2011 Part 6 Licensing Division 5 Other matters about licences s. 70 1 (2) The register must be available for inspection by an officer 2 during normal office hours. 3 (3) The register may be made available electronically for inspection 4 by an officer. 5 (4) An officer may, on application to the CEO in respect of the 6 register or an entry in the register, and payment of the 7 prescribed fee (if any), obtain a certified copy of the register or 8 the entry. 9 (5) No fee is payable under subsection (4) if the application is made 10 by a police officer for the purpose of performing a function of a 11 police officer under this Act. 12 70. Licence document 13 (1) A licence that is issued or renewed must be in a form approved 14 by the CEO. 15 (2) The CEO must give the licence holder a new licence if the CEO 16 renews a licence. 17 (3) The CEO may, on payment of the prescribed fee (if any), issue a 18 certified copy of a licence to the holder of the licence. 19 (4) If a licence is suspended or revoked the person who was the 20 holder of the licence must, as soon as practicable after the 21 suspension or revocation, ensure that the licence document is 22 returned to the CEO. 23 Penalty: a fine of $6 000. 24 (5) Subsection (4) does not apply if the person has a reasonable 25 excuse. 26 71. CEO to be notified of certain matters affecting licences 27 (1) A person who holds an operator's licence must ensure that the 28 CEO is given notice in writing of any notifiable matter as 29 defined in subsection (2) within 7 days after becoming aware of 30 the matter. 31 Penalty: a fine of $24 000 or imprisonment for 2 years. page 52 Prostitution Bill 2011 Licensing Part 6 Other matters about licences Division 5 s. 71 1 (2) In subsection (1) -- 2 notifiable matter, in relation to a prostitution business, means 3 any of the following -- 4 (a) a charge of the commission of an offence under this Act 5 being made against -- 6 (i) an operator or a manager of the business; or 7 (ii) a person who is an officer of the company if a 8 company is the licence holder; 9 (b) a charge of the commission of an indictable offence 10 being made against -- 11 (i) an operator or a manager of the business; or 12 (ii) a person who is an officer of the company if a 13 company is the licence holder; 14 (c) if a company is the licence holder, a person ceasing to 15 be an officer of the company or a person, not already an 16 officer of the company, becoming an officer of the 17 company, and that person's name and address; 18 (d) a change in the name or address of any operator of the 19 business and, if a company is the licence holder, any 20 officer of the company; 21 (e) the name and address of any person who joins the 22 licence holder in operating the business whether or not, 23 if a company is the licence holder, that person is also an 24 officer of the company. 25 (3) A person who holds a prostitute's licence (self-employed) must 26 give the CEO notice in writing of any notifiable matter as 27 defined in subsection (4) within 7 days after becoming aware of 28 the matter. 29 Penalty: a fine of $24 000. page 53 Prostitution Bill 2011 Part 6 Licensing Division 5 Other matters about licences s. 71 1 (4) In subsection (3) -- 2 notifiable matter, in relation to a licence holder, means any of 3 the following -- 4 (a) a charge of the commission of an offence under this Act 5 being made against the licence holder; 6 (b) a charge of the commission of an indictable offence 7 being made against the licence holder; 8 (c) a change in the name or address of the licence holder; 9 (d) another self-employed prostitute ceasing to conduct a 10 prostitution business in the same place as that of the 11 licence holder; 12 (e) another self-employed prostitute starting to conduct a 13 prostitution business in the same place as that of the 14 licence holder. 15 (5) A person who holds a manager's licence or a prostitute's licence 16 (general) must give the CEO notice in writing of any notifiable 17 matter as defined in subsection (6) within 7 days after becoming 18 aware of the matter. 19 Penalty: a fine of $24 000. 20 (6) In subsection (5) -- 21 notifiable matter, in relation to a licence holder, means any of 22 the following -- 23 (a) a charge of the commission of an offence under this Act 24 being made against the licence holder; 25 (b) a charge of the commission of an indictable offence 26 being made against the licence holder; 27 (c) a change in the name or address of the licence holder. page 54 Prostitution Bill 2011 Licensing Part 6 Suspension or revocation of licence Division 6 s. 72 1 Division 6 -- Suspension or revocation of licence 2 72. Powers of CEO 3 (1) The CEO may for the purposes of determining whether or not a 4 licence should be suspended or revoked -- 5 (a) require a person to produce to the CEO any document or 6 other thing concerning the determination that is in the 7 possession or under the control of the person; and 8 (b) inspect any document or other thing produced to the 9 CEO and retain it for such reasonable period as the CEO 10 thinks fit, and make copies of a document or any of its 11 contents; and 12 (c) require a person -- 13 (i) to give the CEO such information as the CEO 14 requires; and 15 (ii) to answer any question put to that person, 16 in relation to the determination. 17 (2) A requirement made under subsection (1)(a) -- 18 (a) must be made by notice in writing given to the person 19 required to produce the document or other thing; and 20 (b) must specify the time at or within which the document 21 or other thing must be produced; and 22 (c) may, by its terms, require that the document or other 23 thing required be produced at a place and by means 24 specified in the requirement; and 25 (d) where the document required is not in a readable format, 26 must be treated as a requirement to produce -- 27 (i) the document itself; and 28 (ii) the contents of the document in a readable 29 format. page 55 Prostitution Bill 2011 Part 6 Licensing Division 6 Suspension or revocation of licence s. 73 1 (3) A requirement made under subsection (1)(c) -- 2 (a) may be made orally or by notice in writing served on the 3 person required to give information or answer a 4 question, as the case may be; and 5 (b) must specify the time at or within which the information 6 must be given or the question must be answered, as the 7 case may be; and 8 (c) may, by its terms, require that the information or answer 9 required -- 10 (i) be given orally or in writing; or 11 (ii) be given at or sent or delivered to a place 12 specified in the requirement; or 13 (iii) in the case of written information or answers be 14 sent or delivered by means specified in the 15 requirement; or 16 (iv) be verified by statutory declaration. 17 (4) If under subsection (1)(a) the CEO requires a person to produce 18 any document or other thing concerning the determination that 19 is in the possession or under the control of the person, the CEO 20 must inform that person that the person is required under this 21 Act to produce the document or thing. 22 (5) If under subsection (1)(c) the CEO requires a person to give 23 information or answer a question, the CEO must inform that 24 person that the person is required under this Act to give the 25 information or answer the question. 26 73. Suspension or revocation of a licence 27 (1) The CEO must not suspend or revoke a licence unless the CEO 28 has first informed the licence holder that the CEO is considering 29 suspending or revoking the licence, as is applicable to the case, 30 and has given the licence holder a reasonable opportunity to be 31 heard or make written representations. page 56 Prostitution Bill 2011 Licensing Part 6 Suspension or revocation of licence Division 6 s. 73 1 (2) The CEO may by notice given to a licence holder suspend the 2 licence for a period specified in the notice or revoke the licence 3 if -- 4 (a) the CEO is no longer satisfied as to any matter about 5 which the CEO would be required to be satisfied before 6 issuing or renewing the licence; or 7 (b) the CEO is satisfied that the licence holder has breached 8 a provision of this Act, whether or not a prosecution has 9 commenced; or 10 (c) in the case where the licence holder is a company, the 11 CEO is satisfied that an officer of the company has 12 breached a provision of this Act, whether or not a 13 prosecution has commenced; or 14 (d) in the case of an operator's licence, the CEO is satisfied 15 that an operator of the prostitution business, the manager 16 of the business or a prostitute working for the business 17 has failed to comply with the approved health and drug 18 management plan for the business; or 19 (e) in the case of a manager's licence, the CEO is satisfied 20 that the manager, or an operator of a prostitution 21 business or a prostitute working for a prostitution 22 business, when being managed by the licence holder, 23 has failed to comply with the approved health and drug 24 management plan for the business; or 25 (f) in the case of a prostitute's licence (general), the CEO is 26 satisfied that the licence holder has failed to comply 27 with the approved health and drug management plan for 28 a prostitution business for which the licence holder 29 works or has worked; or 30 (g) in the case of a prostitute's licence (self-employed), the 31 CEO is satisfied that the licence holder has failed to 32 comply with the approved health and drug management 33 plan for the licence holder's prostitution business; or page 57 Prostitution Bill 2011 Part 6 Licensing Division 6 Suspension or revocation of licence s. 74 1 (h) the CEO comes to know of any other matter that would 2 prevent the CEO from issuing the licence if an 3 application were only then being made for it. 4 (3) In subsection (2)(d), (e) and (f) -- 5 approved health and drug management plan means the health 6 and drug management plan that accompanied the application for 7 the issue or most recent renewal, as is relevant in the case, of the 8 operator's licence for the prostitution business and that satisfied 9 the CEO as being appropriate. 10 (4) In subsection (2)(g) -- 11 approved health and drug management plan means the health 12 and drug management plan that accompanied the application for 13 the issue or most recent renewal, as is relevant in the case, of the 14 prostitute's licence (self-employed) and that satisfied the CEO 15 as being appropriate. 16 (5) The suspension or revocation of a licence takes effect when 17 written notice of it, including the reasons for the decision to 18 suspend or revoke the licence, and notice of the person's right 19 of review under section 153(1), has been given to the person. 20 (6) Nothing in subsection (5) requires or authorises the CEO to 21 disclose confidential police information. 22 (7) A licence is of no effect while it is suspended. 23 74. Notification of revoked licences 24 The CEO -- 25 (a) may notify any person who holds an operator's 26 licence -- 27 (i) that a person has had a licence revoked; and 28 (ii) the day on which the revocation took effect; 29 and 30 (b) must give to a person notified under paragraph (a) 31 information about any setting aside of the CEO's page 58 Prostitution Bill 2011 Licensing Part 6 Offences relating to licences Division 7 s. 75 1 decision to revoke the licence by the State 2 Administrative Tribunal. 3 75. Persons whose licence revoked not to work for prostitution 4 business for 5 years 5 (1) An operator of a prostitution business who, under section 74, is 6 notified that a person's licence has been revoked must ensure 7 that the person does not work for the prostitution business, in 8 any capacity, during the period of 5 years starting on the day on 9 which the revocation took effect. 10 Penalty: a fine of $10 000. 11 (2) A person who has had a licence revoked must not work for any 12 prostitution business, in any capacity, during the period of 13 5 years starting on the day on which the revocation took effect. 14 Penalty: a fine of $10 000. 15 Division 7 -- Offences relating to licences 16 76. False or misleading information 17 (1) A person must not do any of the things set out in 18 subsection (2) -- 19 (a) in relation to an application under this Part; or 20 (b) in relation to the compliance, or purported compliance, 21 with a requirement under section 53(1) to give the CEO 22 a document or information. 23 Penalty: a fine of $24 000 or imprisonment for 2 years. 24 (2) The things to which subsection (1) applies are -- 25 (a) making a statement which the person knows is false or 26 misleading in a material particular; or 27 (b) making a statement which is false or misleading in a 28 material particular, with reckless disregard as to whether 29 or not the statement is false or misleading in a material 30 particular; or page 59 Prostitution Bill 2011 Part 6 Licensing Division 7 Offences relating to licences s. 77 1 (c) providing, or causing to be provided, information that 2 the person knows is false or misleading in a material 3 particular; or 4 (d) providing, or causing to be provided, information that is 5 false or misleading in a material particular, with reckless 6 disregard as to whether the information is false or 7 misleading in a material particular. 8 77. Offences in relation to determination under section 72 9 (1) Where under section 72 a person is required to give any 10 information, answer any question, or produce any document or 11 thing that person must not, without reasonable excuse (proof of 12 which lies on the person) -- 13 (a) fail to give that information or answer that question at or 14 within the time specified in the requirement; or 15 (b) give any information or answer that is false in any 16 particular; or 17 (c) fail to produce that document or thing at or within the 18 time specified in the requirement. 19 Penalty: a fine of $24 000 or imprisonment for 2 years. 20 (2) It is a defence to a charge of an offence under subsection (1)(a) 21 or (c) for the accused to prove -- 22 (a) that, in the case of an alleged offence arising out of a 23 requirement made orally under section 72, the CEO did 24 not, when making the requirement, inform the accused 25 that he or she was required under this Act to give the 26 information or answer the question, as the case may be; 27 or 28 (b) that, in the case of an alleged offence arising out of a 29 requirement made by notice in writing under section 72, 30 the notice did not state that he or she was required under 31 this Act to give the information, answer the question, or 32 produce the document or thing, as the case may be; or page 60 Prostitution Bill 2011 Licensing Part 6 Planning and development controls Division 8 s. 78 1 (c) that the time specified in the requirement did not afford 2 the accused sufficient notice to enable him or her to 3 comply with the requirement; or 4 (d) that, in any case, the CEO did not, before making the 5 requirement, have reasonable grounds to believe that 6 compliance with the requirement would assist the CEO 7 in making the determination. 8 78. Incriminating information, questions or documents 9 An individual is not excused from complying with a 10 requirement under section 72 on the ground that the answer to a 11 question or the production of a document or other thing might 12 incriminate the individual or render the individual liable to a 13 penalty, but neither -- 14 (a) an answer given by the individual that was given to 15 comply with the requirement; nor 16 (b) the fact that a document or other thing produced by the 17 individual to comply with the requirement was 18 produced, 19 is admissible in evidence in any civil or criminal proceedings 20 against the individual other than proceedings for an offence 21 under section 77(1)(b). 22 Division 8 -- Planning and development controls 23 79. Terms used 24 In this Division -- 25 caretaker's dwelling means a dwelling that is -- 26 (a) on the same land as, or part of, a building, operation or 27 plant; and 28 (b) occupied by a supervisor of the building, operation or 29 plant; 30 City of Perth inner zone means the area of land in the Perth 31 local government district that is bounded by the Mitchell page 61 Prostitution Bill 2011 Part 6 Licensing Division 8 Planning and development controls s. 79 1 Freeway to the west, Newcastle Street to the north, Victoria 2 Avenue and Lord Street to the east and the Swan River to the 3 south, but does not include the area of land that is bounded by 4 Fitzgerald Street, Aberdeen Street, Shenton Street and James 5 Street; 6 planning scheme means any of the following -- 7 (a) a planning scheme as defined in the Planning and 8 Development Act 2005 section 4(1); 9 (b) a prescribed redevelopment scheme; 10 (c) a master plan as defined in the Hope Valley-Wattleup 11 Redevelopment Act 2000 section 3(1); 12 (d) an interim development order as defined in the Planning 13 and Development Act 2005 section 4(1); 14 protected place means -- 15 (a) a hospital; or 16 (b) a place used for education, worship, the care or 17 recreation of children, or to provide community support 18 or welfare; or 19 (c) a place of a kind that is prescribed; or 20 (d) a place that is used for a prescribed purpose; 21 residential area means an area, zone or precinct, however 22 described, in which the use of land for residential purposes is 23 permitted by the applicable planning scheme, whether or not 24 subject to conditions, without the need for the responsible 25 planning authority to exercise its discretion to grant planning 26 approval for such use; 27 responsible planning authority, in relation to -- 28 (a) a local planning scheme as defined in the Planning and 29 Development Act 2005 section 4(1), means the local 30 government which is responsible for the local planning 31 scheme; or page 62 Prostitution Bill 2011 Licensing Part 6 Planning and development controls Division 8 s. 80 1 (b) an improvement scheme as defined in the Planning and 2 Development Act 2005 section 4(1), means the WAPC; 3 or 4 (c) a region planning scheme as defined in the Planning and 5 Development Act 2005 section 4(1), means the WAPC; 6 or 7 (d) a prescribed redevelopment scheme, means the authority 8 prescribed in relation to that scheme for the purposes of 9 this definition; or 10 (e) a master plan as defined in the Hope Valley-Wattleup 11 Redevelopment Act 2000 section 3(1), means the 12 Western Australian Land Authority established under 13 the Western Australian Land Authority Act 1992 14 section 5(1); or 15 (f) a local interim development order as defined in the 16 Planning and Development Act 2005 section 4(1), 17 means the local government responsible for the 18 enforcement of the order; or 19 (g) a regional interim development order as defined in the 20 Planning and Development Act 2005 section 4(1), 21 means the WAPC or local government exercising the 22 powers of the WAPC; 23 WAPC means the Western Australian Planning Commission 24 established by the Planning and Development Act 2005 25 section 7. 26 80. Measurement of distances 27 For the purposes of this Division the distance between a 28 protected place or a residence and a prostitution business must 29 be measured between -- 30 (a) the boundary of the land on which the protected place or 31 residence is built that is closest to the prostitution 32 business; and page 63 Prostitution Bill 2011 Part 6 Licensing Division 8 Planning and development controls s. 81 1 (b) the wall of the building in which the prostitution 2 business is conducted or proposed to be conducted that 3 is closest to the protected place or residence. 4 81. This Division does not affect licensing requirements 5 Nothing in this Division affects a requirement under Division 2 6 for a person to hold a licence in relation to a prostitution 7 business. 8 82. This Division overrides planning schemes, approvals 9 (1) The provisions of this Division apply despite the provisions of 10 any planning scheme. 11 (2) A provision in a planning scheme that is inconsistent with a 12 provision of this Division is of no effect to the extent of the 13 inconsistency. 14 (3) For the purposes of section 55(7)(b), 58(2)(d) or 61(3)(a), a 15 responsible planning authority's approval for a prostitution 16 business to be conducted in a place has no effect to the extent 17 that the approval is inconsistent with a provision of this 18 Division. 19 83. No prostitution businesses in residential areas 20 (1) Land in a residential area must not be used for the purposes of a 21 prostitution business. 22 (2) Despite subsection (1), land in a residential area may continue 23 to be used for the purposes of a prostitution business -- 24 (a) if it did not become part of a residential area until after 25 an operator's licence in relation to the business was 26 issued; and 27 (b) for the duration of the operator's licence or, if the 28 licence has been renewed, for the duration of the most 29 recent renewal. page 64 Prostitution Bill 2011 Licensing Part 6 Planning and development controls Division 8 s. 84 1 84. Prostitution businesses in non-residential areas 2 (1) Land that is not in a residential area may be used for the 3 purposes of a prostitution business if -- 4 (a) a development application is made for approval to use 5 the land for that purpose; and 6 (b) the responsible planning authority's decision on the 7 application permits the land to be used for that purpose; 8 and 9 (c) the land is not land to which section 85(2)(a), (b) or (c) 10 applies or if it is, the use is in accordance with 11 section 85(3); and 12 (d) the land is not land to which section 86(2)(a), (b) or (c) 13 applies or if it is, the use is in accordance with 14 section 86(3). 15 (2) A planning scheme may require that a development application 16 that is made for approval to use land for the purposes of a 17 prostitution business must be advertised in accordance with the 18 provisions of the Planning and Development Act 2005, 19 including regulations made under that Act, relating to the 20 advertisement of development applications. 21 85. Prostitution businesses in non-residential areas in City of 22 Perth inner zone 23 (1) In this section -- 24 land (CPIZ) means land that -- 25 (a) is within the City of Perth inner zone; and 26 (b) is not in a residential area. 27 (2) Land (CPIZ) must not be used for the purposes of a prostitution 28 business if -- 29 (a) the distance between the prostitution business and any 30 protected place, wherever situated, is less than 100 m; or 31 (b) the land comprises a building that contains a dwelling 32 other than a caretaker's dwelling; or page 65 Prostitution Bill 2011 Part 6 Licensing Division 8 Planning and development controls s. 86 1 (c) in the opinion of the City of Perth, the land is in an area 2 that contains a significant number of dwellings 3 (although not a residential area). 4 (3) Despite subsection (2), land (CPIZ) may continue to be used for 5 the purposes of a prostitution business if -- 6 (a) the business was established after this Division came 7 into operation; and 8 (b) after the issue of an operator's licence in relation to the 9 business -- 10 (i) a protected place is situated less than 100 m from 11 the business; or 12 (ii) a dwelling, other than a caretaker's dwelling, is 13 established in the building in which the business 14 is conducted; or 15 (iii) the City of Perth forms the opinion that the area 16 in which the business is located contains a 17 significant number of dwellings (although not a 18 residential area); 19 and 20 (c) if a development application was made for approval to 21 use land in a way mentioned in paragraph (b), the 22 responsible planning authority to which the application 23 was made had, before making a decision on the 24 application, informed the applicant of each prostitution 25 business to which paragraph (b) would apply if the use 26 was permitted. 27 86. Prostitution businesses in non-residential areas in rest of 28 State 29 (1) In this section -- 30 land (rest of WA) means land that -- 31 (a) is within any area of the State other than the City of 32 Perth inner zone; and 33 (b) is not in a residential area. page 66 Prostitution Bill 2011 Licensing Part 6 Planning and development controls Division 8 s. 86 1 (2) Land (rest of WA) must not be used for the purposes of a 2 prostitution business if -- 3 (a) the distance between the prostitution business and any 4 residence (other than a caretaker's dwelling), wherever 5 situated, is less than 100 m; or 6 (b) the distance between the prostitution business and any 7 protected place, wherever situated, is less than 200 m; or 8 (c) in the opinion of the responsible planning authority for 9 the land in which the business is located, the land is in 10 an area that contains a significant number of dwellings 11 (although not a residential area). 12 (3) Despite subsection (2), land (rest of WA) may continue to be 13 used for the purposes of a prostitution business if -- 14 (a) the business was established after this Division came 15 into operation; and 16 (b) after the issue of an operator's licence in relation to the 17 business -- 18 (i) a residence, other than a caretaker's dwelling, is 19 situated less than 100 m from the business; or 20 (ii) a protected place is situated less than 200 m from 21 the business; or 22 (iii) the responsible planning authority for the land in 23 which the business is located forms the opinion 24 that the area in which the business is located 25 contains a significant number of dwellings 26 (although not a residential area); 27 and 28 (c) if a development application was made for approval to 29 use land in a way mentioned in paragraph (b), the 30 responsible planning authority to which the application 31 was made had, before making a decision on the 32 application, informed the applicant of each prostitution 33 business to which paragraph (b) would apply if the use 34 was permitted. page 67 Prostitution Bill 2011 Part 6 Licensing Division 9 Governor's powers as to licences in certain areas and licence applications s. 87 1 Division 9 -- Governor's powers as to licences in certain areas 2 and licence applications 3 87. Terms used 4 In this Division -- 5 no licence area order means an order made under section 88(1); 6 order means a no licence area order or a particular applicant 7 order; 8 particular applicant order means an order made under 9 section 89(1). 10 88. No licence area order 11 (1) The Governor may, for any reason, make an order that the CEO 12 must not issue a licence to any person to operate or manage a 13 prostitution business in an area of the State that is specified in 14 the order. 15 (2) The Governor may, for any reason, vary or revoke a no licence 16 area order. 17 (3) Before a no licence area order is made, varied or revoked the 18 Minister must, at least 14 days before the day on which the 19 order is proposed to be made, varied or revoked -- 20 (a) publish in the Gazette notice of the intention to make, 21 vary or revoke the order so that persons likely to be 22 affected by the making, variation or revocation of the 23 order may make representations in writing to the 24 Minister; and 25 (b) inform the local government of the district in which the 26 area is located of the intention to make, vary or revoke 27 the order so that the local government may make 28 representations in writing to the Minister. 29 (4) Before a no licence area order is made, varied or revoked the 30 Minister must have regard to each matter raised in the page 68 Prostitution Bill 2011 Licensing Part 6 Governor's powers as to licences in certain areas and licence Division 9 applications s. 89 1 representations received in deciding whether to recommend that 2 the Governor makes, varies or revokes a no licence area order. 3 (5) A no licence area order, or a variation or revocation of a no 4 licence area order, takes effect on the day on which it is 5 published in the Gazette. 6 89. Particular applicant order 7 (1) The Governor may for any reason, after an application for a 8 licence is made but before the licence is issued, make an order 9 that the CEO must not issue the licence. 10 (2) The Governor may, for any reason, vary or revoke a particular 11 applicant order. 12 (3) Before a particular applicant order is made or varied the 13 Minister must, at least 14 days before the day on which the 14 order is proposed to be made or varied give notice of the 15 intention to make or vary the order to the applicant so that the 16 applicant may make representations in writing to the Minister. 17 (4) Before a particular applicant order is made or varied the 18 Minister must have regard to each matter raised in the 19 representations received in deciding whether to recommend that 20 the Governor makes or varies a particular applicant order. 21 (5) A particular applicant order, or a variation or revocation of a 22 particular applicant order, takes effect on the day on which the 23 order or advice of the variation or revocation is given to the 24 CEO. 25 (6) A copy of a particular applicant order or advice of an order's 26 variation or revocation must be given to the applicant before the 27 expiry of the period of 7 days after the order or advice is given 28 to the CEO but a failure to do so does not affect the effect of the 29 order, variation or revocation. page 69 Prostitution Bill 2011 Part 6 Licensing Division 9 Governor's powers as to licences in certain areas and licence applications s. 90 1 90. Effect of orders 2 (1) A no licence area order has effect according to its tenor 3 even if -- 4 (a) land that is in the area of the State that is the subject of 5 the order may, under Division 8, be used for the 6 purposes of a prostitution business; and 7 (b) the responsible planning authority -- 8 (i) has given, in accordance with Division 8, its 9 approval for a prostitution business to be 10 conducted in a place in the area; or 11 (ii) would have given, in accordance with 12 Division 8, its approval for a prostitution 13 business to be conducted in a place in the area, 14 but for the order. 15 (2) A planning scheme, as defined in section 79, that applies to land 16 that is in the area of the State that is the subject of a no licence 17 area order is to be taken to not permit the use of the land for 18 purposes of a prostitution business while the order is in effect. 19 (3) A particular applicant order has effect according to its tenor 20 even if the CEO would have issued a licence to the applicant 21 under section 55(2), but for the order. 22 91. Orders not open to disallowance, challenge 23 (1) An order is not subsidiary legislation for the purposes of the 24 Interpretation Act 1984. 25 (2) An order made or purportedly made may not be challenged, 26 appealed against, reviewed, quashed or called into question on 27 any grounds whatsoever before any court, tribunal, body or 28 person in any legal proceedings, or restrained, removed or 29 otherwise affected by proceedings for any injunctive, 30 declaratory or other relief, remedy or order whether by way of 31 prerogative writ or otherwise. 32 (3) Subsection (2) does not limit judicial review for jurisdictional 33 error. page 70 Prostitution Bill 2011 Enforcement Part 7 Preliminary Division 1 s. 92 1 Part 7 -- Enforcement 2 Division 1 -- Preliminary 3 92. Term used: authorised person 4 In this Part -- 5 authorised person means a person designated under 6 section 97(1) as an authorised person. 7 93. Reasonable force 8 A police officer may use any force that is reasonably necessary, 9 and may call on any assistance necessary, in order to exercise a 10 power under this Part. 11 94. Hindering performance of functions 12 A person must not delay, obstruct or otherwise hinder a police 13 officer or any other person in the performance of any function 14 that the police officer or other person has under this Act. 15 Penalty: imprisonment for 2 years. 16 Division 2 -- Information and reports 17 95. Confidential police information 18 (1) The Commissioner may, for the purposes of this section, 19 classify any information or document held by the Commissioner 20 as confidential. 21 (2) The CEO must not publish or disclose to any person any 22 confidential police information that is provided by the 23 Commissioner to the CEO for the purposes of this Act. 24 (3) Subsection (2) applies despite any other provision of this Act 25 but does not apply to prevent the CEO from disclosing 26 confidential police information to -- 27 (a) a court or the State Administrative Tribunal; or page 71 Prostitution Bill 2011 Part 7 Enforcement Division 2 Information and reports s. 95 1 (b) a person to whom the Commissioner authorises its 2 disclosure. 3 (4) If the CEO makes a decision solely or partly on the basis of 4 confidential police information -- 5 (a) to refuse to issue or renew a licence; or 6 (b) to impose, vary or revoke a licence condition; or 7 (c) to suspend or revoke a licence; or 8 (d) to make a prohibition order under section 120 or an 9 order varying or revoking a prohibition order; or 10 (e) to refuse to give approval under section 180 or about the 11 imposition of a condition on an approval, 12 the CEO is not required to give any reasons for the decision 13 other than that the decision is made in the public interest. 14 (5) In any proceedings under this Act (other than proceedings for an 15 offence), a court or the State Administrative Tribunal -- 16 (a) must, on the application of the Commissioner, take all 17 reasonable steps to maintain the confidentiality of 18 confidential police information, including steps -- 19 (i) to receive evidence and hear argument about 20 confidential police information in private and in 21 the absence of any party to the proceedings other 22 than the CEO or the Commissioner or their 23 representatives; and 24 (ii) to prohibit the publication of evidence about 25 confidential police information; 26 and 27 (b) may take evidence consisting of or relating to 28 confidential police information by way of an affidavit of 29 a member of the Police Force of or above the rank of 30 Superintendent. page 72 Prostitution Bill 2011 Enforcement Part 7 Authorised persons Division 3 s. 96 1 96. Commissioner's reports, opinions on licensing matters 2 In addition to providing to the CEO reports under section 54(3), 3 the Commissioner may, at any time, provide the CEO 4 information and give the Commissioner's opinion about any of 5 the following -- 6 (a) whether a licence holder continues to be eligible or 7 suitable to hold the licence; 8 (b) the imposition, variation or revocation of licence 9 conditions; 10 (c) the suspension or revocation of a licence. 11 Division 3 -- Authorised persons 12 97. Authorised persons 13 (1) The CEO may, by instrument in writing, designate a public 14 service officer employed in the Department as an authorised 15 person for the purposes of this Act. 16 (2) A person may be designated to be an authorised person for a 17 fixed or indefinite period. 18 (3) The CEO may, by instrument in writing, revoke a designation at 19 any time. 20 98. Identity cards 21 (1) The CEO must give an identity card to each person designated 22 by the CEO as an authorised person. 23 (2) An identity card must -- 24 (a) identify the person as an authorised person; and 25 (b) contain a recent photograph of the person. 26 (3) A person must, within 14 days of ceasing to be an authorised 27 person, return the person's identity card to the CEO. 28 Penalty: a fine of $5 000. page 73 Prostitution Bill 2011 Part 7 Enforcement Division 3 Authorised persons s. 99 1 (4) Subsection (3) does not apply if the person has a reasonable 2 excuse. 3 (5) An authorised person must carry his or her identity card at all 4 times when exercising powers or performing functions as an 5 authorised person. 6 99. Production or display of identity card 7 (1) An authorised person may exercise a power in relation to 8 someone only if -- 9 (a) the authorised person first produces the authorised 10 person's identity card for the other person's inspection; 11 or 12 (b) the authorised person has the identity card displayed so 13 it is clearly visible to the other person. 14 (2) However, if for any reason it is not practicable to comply with 15 subsection (1) before exercising the power, the authorised 16 person may exercise the power and then produce the identity 17 card for inspection by the person at the first reasonable 18 opportunity. 19 100. Limitation on powers of authorised person 20 (1) An authorised person must act -- 21 (a) in accordance with the CEO's directions; and 22 (b) subject to any limitation on the powers of that person 23 mentioned in subsection (2). 24 (2) The powers of an authorised person may be limited -- 25 (a) under a condition specified in the person's instrument of 26 designation as an authorised person; or 27 (b) by written notice given by the CEO to the person. 28 (3) The CEO may, at any time, revoke or vary a condition of 29 designation mentioned in subsection (2)(a) or a notice 30 mentioned in subsection (2)(b). page 74 Prostitution Bill 2011 Enforcement Part 7 Enforcement powers Division 4 s. 101 1 Division 4 -- Enforcement powers 2 101. Terms used 3 (1) In this Division -- 4 compliance purposes means any one or more of the 5 following -- 6 (a) monitoring whether a provision of this Act has been, or 7 is being, complied with; 8 (b) investigating a suspected contravention of a provision of 9 this Act; 10 juvenile justice team means a juvenile justice team under the 11 Young Offenders Act 1994 Part 5 Division 2. 12 (2) For the purposes of this Division a person is lawfully entitled to 13 possess something if -- 14 (a) the person owns it or is authorised by the owner to 15 possess it; and 16 (b) the possession is not prohibited by law or is authorised, 17 justified or excused by law. 18 102. Police officer, authorised person, may enter place for certain 19 purposes 20 (1) For compliance purposes a police officer may, without a 21 warrant and at any time, enter a place if the officer reasonably 22 suspects that -- 23 (a) the place is not a dwelling; and 24 (b) a prostitution business is being conducted in the place. 25 (2) An authorised person may, without a warrant and at any time, 26 enter a place in which a prostitution business is conducted and 27 to which a licence applies to ascertain whether -- 28 (a) each person operating the prostitution business holds a 29 current operator's licence or, in the case of a 30 self-employed prostitute, a current prostitute's licence 31 (self-employed); or page 75 Prostitution Bill 2011 Part 7 Enforcement Division 4 Enforcement powers s. 103 1 (b) the person managing the prostitution business at the time 2 holds a current manager's licence and is present in the 3 place; or 4 (c) in relation to any person who acts, or who is available to 5 act, as a prostitute in the prostitution business either -- 6 (i) the person holds a current prostitute's licence 7 (general); or 8 (ii) there is compliance with section 22(b) in respect 9 of the person; 10 or 11 (d) each of section 18(1), (2) or (4), as is relevant to the 12 case, is being complied with. 13 (3) A police officer or an authorised person who enters a place 14 under subsection (1) or (2) may require a person in the place 15 apparently operating, managing or working for a prostitution 16 business to give the police officer or authorised person his or 17 her name and address and provide proof of his or her identity. 18 (4) A police officer who enters a place under subsection (1) may -- 19 (a) search the place and inspect any articles and records 20 kept there; and 21 (b) stop, detain and search anyone in the place; and 22 (c) seize anything that the police officer suspects on 23 reasonable grounds will afford evidence as to the 24 commission of an offence. 25 103. Obstructing person exercising power under s. 102 26 (1) A person must not prevent or attempt to prevent -- 27 (a) a police officer from entering a place under 28 section 102(1); or 29 (b) an authorised person from entering a place under 30 section 102(2); or page 76 Prostitution Bill 2011 Enforcement Part 7 Enforcement powers Division 4 s. 104 1 (c) otherwise obstruct or impede a police officer or 2 authorised person in the exercise of his or her powers 3 under section 102. 4 Penalty: a fine of $24 000 or imprisonment for 2 years. 5 (2) If required under section 102(3) by a police officer or authorised 6 person to give the police officer or authorised person his or her 7 name and address or provide proof of his or her identity, a 8 person must not fail to give the police officer or authorised 9 person his or her name and address or provide proof of his or 10 her identity. 11 Penalty: a fine of $24 000 or imprisonment for 2 years. 12 104. Powers to obtain information 13 (1) A police officer may, for compliance purposes -- 14 (a) require a person to produce to the police officer any 15 document or other thing that is in the possession or 16 under the control of the person; and 17 (b) inspect any document or other thing produced to the 18 police officer and retain it for such reasonable period as 19 the police officer thinks fit, and make copies of a 20 document or any of its contents; and 21 (c) require a person -- 22 (i) to give the police officer such information as the 23 police officer requires; and 24 (ii) to answer any question put to that person. 25 (2) A requirement made under subsection (1) to produce a 26 document or other thing -- 27 (a) must be made in writing given to the person required to 28 produce the document or other thing; and 29 (b) must specify the time at or within which the document 30 or other thing must be produced; and page 77 Prostitution Bill 2011 Part 7 Enforcement Division 4 Enforcement powers s. 104 1 (c) may, by its terms, require that the document or other 2 thing required be produced at a place and by means 3 specified in the requirement; and 4 (d) where the document required is not in a readable format, 5 must be treated as a requirement to produce -- 6 (i) the document itself; and 7 (ii) the contents of the document in a readable 8 format. 9 (3) A requirement made under subsection (1) to give information or 10 answer a question -- 11 (a) may be made orally or in writing served on the person 12 required to give information or answer a question, as the 13 case may be; and 14 (b) must specify the time at or within which the information 15 must be given or the question must be answered, as the 16 case may be; and 17 (c) may, by its terms, require that the information or answer 18 required -- 19 (i) be given orally or in writing; or 20 (ii) be given at or sent or delivered to a place 21 specified in the requirement; or 22 (iii) in the case of written information or answers, be 23 sent or delivered by means specified in the 24 requirement; or 25 (iv) be verified by statutory declaration. 26 (4) If under subsection (1) the police officer requires a person to 27 give information or answer a question, the police officer must 28 inform the person that the person is required under this Act to 29 give the information or answer the question. page 78 Prostitution Bill 2011 Enforcement Part 7 Enforcement powers Division 4 s. 105 1 105. Failure to comply with requirements under s. 104 2 (1) A person must not, without lawful excuse, refuse or fail to 3 produce a document or other thing as required under 4 section 104. 5 Penalty: imprisonment for 2 years. 6 (2) A person must not, without lawful excuse, refuse or fail to 7 answer a question or otherwise give information when required 8 to do so under section 104. 9 Penalty: imprisonment for 2 years. 10 (3) Where an individual is required under section 104 to answer a 11 question or otherwise give information or produce anything, 12 none of the following is admissible in evidence in any civil or 13 criminal proceedings against the individual other than 14 proceedings for perjury or for an offence arising from the false 15 or misleading nature of the answer or information given -- 16 (a) an answer given by the individual that was given to 17 comply with the requirement; 18 (b) the fact that any information that was given by the 19 individual to comply with the requirement was given; 20 (c) the fact that anything that was produced by the 21 individual to comply with the requirement was 22 produced. 23 (4) Nothing in this Act prevents -- 24 (a) an individual from refusing to answer a question or 25 otherwise give information or produce a document or 26 other thing because the answer or information might, or 27 the document or thing contains information that might, 28 incriminate the individual or render the individual liable 29 to a penalty; or 30 (b) a person refusing to answer a question or otherwise give 31 information or produce a document or other thing 32 because the answer or information would relate to, or page 79 Prostitution Bill 2011 Part 7 Enforcement Division 4 Enforcement powers s. 106 1 the document or thing contains, information in respect 2 of which the person claims legal professional privilege. 3 (5) A document or thing -- 4 (a) that is produced in compliance with a requirement under 5 section 104; and 6 (b) for which a person entitled to possession of it claims 7 legal professional privilege for all or some of the 8 information in it, 9 must be dealt with in accordance with the Criminal 10 Investigation Act 2006 section 151 as if it were a business 11 record produced under an order to produce issued under 12 section 53 of that Act. 13 106. Police direction to move on 14 (1) A police officer who has reason to suspect that a person has 15 committed, or intends to commit, an offence under section 9 16 or 10 in relation to a public place may, in writing in a form 17 approved by the Commissioner, direct the person to move away 18 from that place and a surrounding area specified in the direction, 19 and stay away from it for a period of not more than 24 hours 20 specified in the direction. 21 (2) A person must not, without lawful excuse, contravene a 22 direction given under subsection (1). 23 Penalty: 24 (a) for a first offence, a fine of $6 000; 25 (b) for a second or subsequent offence, imprisonment for 26 one year. 27 107. Detain, search and seize without warrant 28 (1) In this section -- 29 conveyance means anything used or capable of being used to 30 transport people or goods by air, land or water, and it does not 31 matter how it is propelled or that it may ordinarily be stationary; page 80 Prostitution Bill 2011 Enforcement Part 7 Enforcement powers Division 4 s. 108 1 offence means an offence under this Act. 2 (2) A police officer may without a warrant stop, detain and search 3 anyone whom the police officer suspects on reasonable grounds 4 to be -- 5 (a) committing an offence; or 6 (b) carrying anything that will afford evidence as to the 7 commission of an offence. 8 (3) A police officer may without a warrant stop, detain and search 9 any conveyance where the police officer suspects on reasonable 10 grounds that there is -- 11 (a) anyone who is committing an offence; or 12 (b) anything that will afford evidence as to the commission 13 of an offence. 14 (4) The power to stop and detain a conveyance includes the power 15 to detain anyone in or on the conveyance for as long as is 16 reasonably necessary to search the conveyance even though, 17 until the conveyance has been searched, the person may not be 18 suspected of anything because of which the person can be 19 detained under subsection (2). 20 (5) A police officer may without a warrant seize anything that the 21 police officer suspects on reasonable grounds will afford 22 evidence as to the commission of an offence. 23 108. Detain, search and seize with warrant 24 (1) If a justice is satisfied that there are reasonable grounds for 25 suspecting that there is in a place anything that will afford 26 evidence as to the commission of an offence under this Act, the 27 justice may grant a warrant of search and seizure in relation to 28 that place. 29 (2) A warrant under subsection (1) authorises any police officer at 30 any time, with such assistance as the police officer thinks 31 necessary and with such force as is reasonably necessary -- 32 (a) to enter the place at any time; and page 81 Prostitution Bill 2011 Part 7 Enforcement Division 4 Enforcement powers s. 109 1 (b) to search the place; and 2 (c) to stop, detain and search anyone in the place; and 3 (d) to seize anything that the police officer suspects on 4 reasonable grounds will afford evidence as to the 5 commission of an offence under this Act. 6 (3) The authority given by a warrant lapses at the end of a period of 7 30 days after it was granted and, until it lapses or the purpose 8 for which it was given is satisfied, the authority it gives may be 9 exercised from time to time unless the warrant expressly limits 10 that authority. 11 109. Warrant may be obtained remotely 12 (1) An application for a warrant under section 108 may be initially 13 submitted by telephone, fax, radio or another form of 14 communication if the applicant considers it necessary because 15 of urgent circumstances or the applicant's remote location. 16 (2) Before submitting an application under this section, the 17 applicant must prepare a written application setting out the 18 grounds for seeking the warrant and describing the place to 19 which the warrant relates. 20 (3) If an application is submitted under this section, the information 21 in the written application required by subsection (2) must be 22 verified by affidavit and, if it is necessary to do so, the 23 application may be submitted before the affidavit has been 24 sworn. 25 (4) When issuing a warrant upon an application submitted under 26 this section, the justice must -- 27 (a) complete and sign the warrant; and 28 (b) inform the applicant of the terms of the warrant and the 29 date on which and the time at which it was signed; and 30 (c) record on the warrant the reasons for issuing the 31 warrant; and 32 (d) send a copy of the warrant to the applicant. page 82 Prostitution Bill 2011 Enforcement Part 7 Enforcement powers Division 4 s. 110 1 (5) If a warrant is issued upon an application submitted under this 2 section, the applicant may complete a form of warrant in the 3 terms indicated by the justice under subsection (4)(b) if the 4 applicant writes on it the name of the justice who issued the 5 warrant and the date on which, and the time at which, it was 6 signed. 7 (6) If the applicant completes a form of warrant in accordance with 8 subsection (5), the applicant must send to the justice who signed 9 the warrant, not later than the day next following the day on 10 which the warrant ceases to have effect, the form of warrant 11 completed by the person and the affidavit sworn in connection 12 with the warrant. 13 (7) On receiving the documents referred to in subsection (6), the 14 justice must attach them to the warrant signed by the justice and 15 deal with the documents in the manner in which the justice 16 would have dealt with the affidavit if the application for the 17 warrant had not been submitted under this section. 18 (8) A form of warrant completed in accordance with subsection (5) 19 must be treated as the warrant itself. 20 110. Provisions about searching a person 21 (1) In this section -- 22 medical practitioner means a person who is registered under the 23 Health Practitioner Regulation National Law (Western 24 Australia) in the medical profession; 25 registered nurse means a person who is registered under the 26 Health Practitioner Regulation National Law (Western 27 Australia) in the nursing and midwifery profession whose name 28 is entered on Division 1 of the Register of Nurses kept under 29 that Law as a registered nurse. 30 (2) A police officer cannot conduct a search of a person under this 31 Part unless of the same sex as the person searched. page 83 Prostitution Bill 2011 Part 7 Enforcement Division 4 Enforcement powers s. 110 1 (3) If a police officer of the same sex as the person to be searched is 2 not immediately available to conduct the search, another police 3 officer may -- 4 (a) cause the search to be conducted, under the direction of 5 a police officer, by another person of the same sex as the 6 person to be searched; or 7 (b) detain the person for as long as is reasonably necessary 8 for the person to be searched in accordance with this 9 section; or 10 (c) convey or conduct the person to a place where the 11 person can be searched in accordance with this section. 12 (4) Nothing in this Part authorises a search by way of an 13 examination of the body cavities of a person unless it is 14 conducted -- 15 (a) under subsection (6) by a medical practitioner or a 16 registered nurse; and 17 (b) in accordance with subsection (7) if relevant. 18 (5) A police officer may arrange for a medical practitioner or 19 registered nurse nominated by the police officer to examine the 20 body cavities of the person to be searched and may -- 21 (a) detain the person until the arrival of that medical 22 practitioner or registered nurse; or 23 (b) convey or conduct the person to that medical 24 practitioner or registered nurse. 25 (6) A medical practitioner or registered nurse may conduct an 26 examination arranged by a police officer under subsection (5) 27 and no action lies against the medical practitioner or registered 28 nurse in respect of anything reasonably done for the purposes of 29 the examination. 30 (7) A strip search or an examination of the body cavities of a person 31 who is a child or an incapable person (the protected person) 32 must, if practicable, be done in the presence of a responsible 33 person or some other person who can provide the protected page 84 Prostitution Bill 2011 Enforcement Part 7 Enforcement powers Division 4 s. 111 1 person with support and represent the protected person's 2 interests. 3 (8) In subsection (7) -- 4 incapable person means a person who, because of intellectual 5 disability, mental illness, brain damage or senility, is incapable 6 of understanding the general nature and effect of, and the reason 7 for and the consequences of undergoing, an examination of the 8 person's body cavities; 9 responsible person, in relation to a child, has the meaning given 10 to that term in the Criminal Investigation Act 2006 section 73; 11 responsible person, in relation to an incapable person, has the 12 meaning given to that term in the Criminal Investigation 13 Act 2006 section 73; 14 strip search means a search that involves any action referred to 15 in the Criminal Investigation Act 2006 section 64(1). 16 111. Retaining something seized but not forfeited 17 (1) This section applies to anything seized under this Act that -- 18 (a) is not forfeited to the Crown; and 19 (b) a court has not ordered to be delivered to a person under 20 section 112(1)(b) or 113(6). 21 (2) A police officer may retain anything to which this section 22 applies if -- 23 (a) it is required -- 24 (i) for the investigation of an offence under this Act 25 or the prosecution of someone for an offence 26 under this Act; or 27 (ii) for the purposes of a matter that is being dealt 28 with by a juvenile justice team; 29 or 30 (b) no person has satisfied the Commissioner that the person 31 is lawfully entitled to possess it. page 85 Prostitution Bill 2011 Part 7 Enforcement Division 4 Enforcement powers s. 112 1 (3) Anything to which this section applies that cannot be retained 2 under subsection (2) must be returned to the person from whom 3 it was seized. 4 112. Forfeiture and delivery on conviction 5 (1) A court convicting a person of an offence under this Act may 6 order that -- 7 (a) anything relating to the offence, whether or not it has 8 been seized and retained by a police officer under this 9 Act, is forfeited to the Crown; or 10 (b) anything relating to the offence that has been seized and 11 retained by a police officer under this Act be delivered 12 to another person who is lawfully entitled to possess it. 13 (2) A person claiming to be lawfully entitled to possess anything in 14 respect of which an order may be made under subsection (1)(b) 15 may, in connection with the making of an order -- 16 (a) be heard in the proceedings for the offence; and 17 (b) make an application under the Criminal Procedure 18 Act 2004 section 71 as if the person were a party to the 19 prosecution for the offence; and 20 (c) appeal against the order under the Criminal Appeals 21 Act 2004 Part 2. 22 113. Forfeiture and delivery other than on conviction 23 (1) A person claiming to be lawfully entitled to possess anything 24 seized and retained under this Act may, if the application is not 25 prevented by subsection (2) and the last day for applying has not 26 passed, apply to the Magistrates Court for an order that the thing 27 be delivered to the person. 28 (2) An application cannot be made under subsection (1) for an order 29 for the delivery of anything if -- 30 (a) an order has been made under section 112(1) for its 31 forfeiture or delivery; or page 86 Prostitution Bill 2011 Enforcement Part 7 Enforcement powers Division 4 s. 113 1 (b) a relevant juvenile justice team matter that has 2 commenced has not been finally disposed of by the 3 team; or 4 (c) a relevant charge that has been laid has not been 5 withdrawn or heard and determined. 6 (3) In subsection (2) -- 7 relevant charge means a charge of an offence to which the thing 8 that was seized relates; 9 relevant juvenile justice team matter means a matter to which 10 the thing that was seized relates that is or was being dealt with 11 by a juvenile justice team. 12 (4) The last day for applying for an order under subsection (1) is the 13 21st day after the day on which the thing was seized unless the 14 last day for applying is postponed by subsection (5). 15 (5) If, for any part of the time when an application could otherwise 16 be made in accordance with subsection (4), the making of the 17 application is prevented by subsection (2)(b) or (c), the last day 18 for applying (whether under subsection (4) or as postponed by 19 this subsection) is postponed until the 21st day after the day on 20 which the making of the application ceases to be prevented by 21 subsection (2)(b) or (c). 22 (6) On an application under subsection (1), the court may order that 23 the thing seized be delivered to the person making the 24 application if the court is satisfied on the balance of 25 probabilities that the person is lawfully entitled to possess it. 26 (7) The court may adjourn the application if it is satisfied that the 27 thing seized should, for the time being, continue to be retained 28 because it is required for a reason described in 29 section 111(2)(a). 30 (8) If the last day for applying under subsection (1) for an order for 31 the delivery of a thing has passed and either no application has 32 been made or each application made has been dealt with without page 87 Prostitution Bill 2011 Part 7 Enforcement Division 5 Prohibition orders s. 114 1 ordering that the thing be delivered to a person, that thing is 2 forfeited to the Crown. 3 114. Disposal of thing forfeited 4 (1) If anything is forfeited to the Crown under this Act, the 5 Commissioner may direct that it be sold, destroyed, or otherwise 6 disposed of, as the Commissioner thinks fit, unless 7 subsection (2) prevents the Commissioner from giving the 8 direction. 9 (2) If anything is forfeited to the Crown -- 10 (a) by an order under section 112(1)(a); or 11 (b) after an order dismissing an application under 12 section 113(1), 13 the Commissioner is not to give a direction under subsection (1) 14 before the expiration of the time allowed for instituting an 15 appeal against the order or, if an appeal is lodged within that 16 time, before the determination of the appeal. 17 115. Powers to assist seizing things 18 The Criminal Investigation Act 2006 sections 146 to 150, with 19 any necessary changes, apply to and in respect of seizing a thing 20 that is or may be seized under this Act. 21 Division 5 -- Prohibition orders 22 116. Terms used 23 In this Division -- 24 employer includes a person who engages another person to 25 work under a contract for services; 26 prohibition order means an order made under section 120; 27 relevant person means the person who, as the case requires, is 28 the subject of -- 29 (a) an application under section 117; or page 88 Prostitution Bill 2011 Enforcement Part 7 Prohibition orders Division 5 s. 117 1 (b) a prohibition order; 2 specified means specified in a prohibition order. 3 117. Commissioner may apply for prohibition orders 4 The Commissioner may apply to the CEO in a form approved 5 by the CEO for an order to be made in respect of a person 6 that -- 7 (a) prohibits the relevant person from working for -- 8 (i) a specified business involving the provision of 9 prostitution; or 10 (ii) a prostitution business of a specified class; or 11 (iii) any prostitution business; 12 or 13 (b) prohibits the relevant person from entering -- 14 (i) a specified place in which a prostitution business 15 is conducted; or 16 (ii) a place in which a prostitution business of a 17 specified kind is conducted; or 18 (iii) any place in which a prostitution business is 19 conducted. 20 118. Evidence in support of application 21 (1) An application under section 117 must -- 22 (a) set out the reasons in support of the Commissioner's 23 opinion that a prohibition order should be made in 24 respect of the relevant person; and 25 (b) set out any other information and be accompanied by 26 any document that the Commissioner considers relevant 27 to the application. page 89 Prostitution Bill 2011 Part 7 Enforcement Division 5 Prohibition orders s. 119 1 (2) Without limiting subsection (1), the Commissioner is authorised 2 to include in or with the application -- 3 (a) details of any criminal convictions of the relevant person 4 for offences under the law of the Commonwealth or a 5 State or Territory; and 6 (b) any information that the Commissioner has regarding 7 any involvement, or suspected involvement, of the 8 relevant person in serious and organised crime as 9 defined in the Australian Crime Commission (Western 10 Australia) Act 2004 section 3(1). 11 119. Relevant person to be given notice of application 12 (1) The CEO must give the relevant person a written notice that -- 13 (a) states that the application has been made and explains 14 the proposed effect of the order applied for; and 15 (b) describes the information and documents provided in 16 support of the application; and 17 (c) informs the relevant person that he or she will be given a 18 reasonable opportunity to make submissions or to be 19 heard in relation to the application. 20 (2) Nothing in subsection (1) requires or authorises the CEO to 21 disclose confidential police information. 22 120. CEO may make prohibition orders 23 (1) The CEO may dispose of the application -- 24 (a) by making a prohibition order; or 25 (b) by dismissing the application; or 26 (c) at the request of the Commissioner -- by discontinuing 27 the application. 28 (2) The CEO may make a prohibition order that -- 29 (a) prohibits the relevant person from working for -- 30 (i) a specified business involving the provision of 31 prostitution; or page 90 Prostitution Bill 2011 Enforcement Part 7 Prohibition orders Division 5 s. 121 1 (ii) a prostitution business of a specified class; or 2 (iii) any prostitution business; 3 or 4 (b) prohibits the relevant person from entering -- 5 (i) a specified place in which a prostitution business 6 is conducted; or 7 (ii) a place in which a prostitution business of a 8 specified kind is conducted; or 9 (iii) any place in which a prostitution business is 10 conducted. 11 (3) The CEO may make a prohibition order only if satisfied that it 12 is in the public interest to do so after -- 13 (a) having given the relevant person a reasonable 14 opportunity to make submissions or to be heard in 15 relation to the application; and 16 (b) having regard to -- 17 (i) any information or document provided by the 18 Commissioner in or with the application; and 19 (ii) any information or document provided by the 20 relevant person under paragraph (a). 21 (4) A prohibition order has effect subject to such terms or 22 conditions as the CEO thinks fit and specifies in the order. 23 121. Term of prohibition orders 24 (1) The CEO must specify in a prohibition order the term for which 25 the prohibition order remains in force. 26 (2) The term cannot be for less than one year or more than 5 years 27 after the prohibition order is made, but an application may be 28 made for a further prohibition order. page 91 Prostitution Bill 2011 Part 7 Enforcement Division 5 Prohibition orders s. 122 1 122. Applications to vary or revoke prohibition orders 2 (1) The Commissioner or the relevant person may apply to the CEO 3 in a form approved by the CEO for an order varying or revoking 4 a prohibition order. 5 (2) If the application is made -- 6 (a) by the Commissioner, the relevant person is the 7 respondent; or 8 (b) by the relevant person, the Commissioner is the 9 respondent. 10 (3) The application must -- 11 (a) set out the reasons in support of the applicant's opinion 12 that the prohibition order should be varied or revoked; 13 and 14 (b) set out any other information and be accompanied by 15 any document that the applicant considers relevant to the 16 application. 17 123. Respondent to be given notice of application 18 (1) The CEO must give the respondent a written notice that -- 19 (a) states that the application under section 122 has been 20 made and explains the proposed effect of the order 21 applied for; and 22 (b) describes the information and documents provided in 23 support of the application; and 24 (c) informs the respondent that he or she will be given a 25 reasonable opportunity to make submissions or to be 26 heard in relation to the application. 27 (2) Nothing in subsection (1) requires or authorises the CEO to 28 disclose confidential police information. page 92 Prostitution Bill 2011 Enforcement Part 7 Prohibition orders Division 5 s. 124 1 124. CEO may vary or revoke prohibition orders 2 (1) The CEO may dispose of an application under section 122 -- 3 (a) by making an order that varies or revokes a prohibition 4 order; or 5 (b) by dismissing the application; or 6 (c) at the request of the applicant -- by discontinuing the 7 application. 8 (2) The CEO may make an order varying or revoking a prohibition 9 order only if satisfied that it is in the public interest to do so -- 10 (a) having given the respondent a reasonable opportunity to 11 make submissions or to be heard in relation to the 12 application; and 13 (b) having regard to -- 14 (i) any information or document provided by the 15 applicant in or with the application; and 16 (ii) any information or document provided by the 17 respondent under paragraph (a). 18 125. Notification of orders 19 (1) If the CEO makes a prohibition order, the CEO must give a 20 copy of the order -- 21 (a) to the relevant person; and 22 (b) to the Commissioner; and 23 (c) if the order is made under section 120(2)(a) and the 24 CEO is aware that the relevant person is working for a 25 business to which the order applies -- to the relevant 26 person's employer. 27 (2) If the CEO makes an order varying or revoking a prohibition 28 order, the CEO must give a copy of the order -- 29 (a) to the applicant and the respondent; and page 93 Prostitution Bill 2011 Part 7 Enforcement Division 6 Barring notices s. 126 1 (b) if a copy of the prohibition order that was varied or 2 revoked was given to the relevant person's employer 3 under subsection (1)(c), to that employer. 4 (3) The CEO is also to give to the applicant and the respondent 5 written notice of the reasons for the decision to make the order, 6 and the right of review under section 153. 7 (4) Nothing in subsection (3) requires or authorises the CEO to 8 disclose confidential police information. 9 (5) If the State Administrative Tribunal varies or sets aside a 10 decision of the CEO to make, vary or revoke a prohibition 11 order, the CEO must so inform the relevant person's employer if 12 the employer was given a copy of the order under 13 subsection (1)(c). 14 126. Compliance with prohibition order 15 (1) A person who is given a copy of a prohibition order under 16 section 125(1)(a) must comply with the order. 17 Penalty: a fine of $10 000. 18 (2) A person who is given a copy of a prohibition order under 19 section 125(1)(c) must not allow the relevant person to continue 20 working for a business to which the order applies in 21 contravention of the order. 22 Penalty: a fine of $10 000. 23 Division 6 -- Barring notices 24 127. Terms used 25 In this Division -- 26 approved means approved by the Commissioner; 27 notice means a notice under section 128(1); 28 specified means specified in a notice. page 94 Prostitution Bill 2011 Enforcement Part 7 Barring notices Division 6 s. 128 1 128. Barring notices by Commissioner 2 (1) The Commissioner may give a notice to a person prohibiting the 3 person from entering -- 4 (a) a specified place in which a prostitution business is 5 conducted; or 6 (b) a place in which a prostitution business of a specified 7 kind is conducted; or 8 (c) any place in which a prostitution business is conducted. 9 (2) The Commissioner may give a notice only if the Commissioner 10 believes, on reasonable grounds, that the person has, in a place 11 in which a prostitution business is conducted -- 12 (a) been violent or disorderly; or 13 (b) contravened a provision of any written law. 14 (3) The notice must be in an approved form. 15 (4) The Commissioner is also to give with a notice the reasons for 16 the decision to give the notice, and the person's rights of review 17 under subsection (10) and section 153. 18 (5) Nothing in subsection (4) requires or authorises the 19 Commissioner to disclose confidential police information. 20 (6) The notice has effect from the day the notice is given to the 21 person until the first of the following days -- 22 (a) the specified day; 23 (b) if the notice is revoked under subsection (9) -- the day 24 that the notice of revocation is given to the person; 25 (c) if the decision to give the notice is set aside on review 26 under subsection (11) or section 153 -- the day of that 27 decision. 28 (7) The specified day cannot be more than 12 months after the day 29 on which the notice is given to the person. page 95 Prostitution Bill 2011 Part 7 Enforcement Division 7 Closure notices and closure orders s. 129 1 (8) A person who is given a notice must not enter a place in 2 contravention of the notice. 3 Penalty: a fine of $10 000. 4 (9) The Commissioner may revoke a notice by giving to the person 5 a notice of revocation in an approved form. 6 (10) A person who is aggrieved by a decision of the Commissioner 7 to give a notice may apply to the Commissioner for a review of 8 the decision. 9 (11) The Commissioner, in dealing with an application under 10 subsection (10) may affirm, vary or set aside the decision that is 11 being reviewed. 12 (12) The Commissioner -- 13 (a) may give a copy of a notice to any person who holds an 14 operator's licence or a manager's licence if the 15 Commissioner is of the opinion that it is necessary to do 16 so to minimise the risk of harm or injury to any person; 17 and 18 (b) must give to a person given a copy of a notice under 19 paragraph (a) -- 20 (i) a copy of a notice of revocation concerning that 21 notice; and 22 (ii) information about any variation or setting aside 23 of the decision to give the notice made by the 24 Commissioner under subsection (10) or by the 25 State Administrative Tribunal. 26 Division 7 -- Closure notices and closure orders 27 129. Terms used 28 In this Division -- 29 closure notice means a notice issued under section 130; 30 closure offence provision means section 11(1), 15(1), 36(1) 31 or (2), 37(1) or 38(1); page 96 Prostitution Bill 2011 Enforcement Part 7 Closure notices and closure orders Division 7 s. 130 1 closure order means an order made under section 135(2); 2 specified means specified in a closure notice or closure order. 3 130. Closure notice for interim closure of certain places 4 A police officer may issue a notice -- 5 (a) to prohibit any person, other than a person who owns or 6 regularly occupies a specified place, from entering or 7 remaining in the place; or 8 (b) to prohibit a specified visitor or specified class of visitor 9 to a specified place from entering or remaining in the 10 place. 11 131. Requirements for issue of closure notice 12 (1) A closure notice may be issued under subsection (2) or (3). 13 (2) A closure notice may be issued in relation to a specified place if 14 the issuing police officer believes on reasonable grounds -- 15 (a) that an offence under, or an act of prostitution in 16 circumstances mentioned in, a closure offence 17 provision -- 18 (i) has occurred in the specified place; or 19 (ii) is occurring in the specified place; or 20 (iii) is likely to occur in the specified place if a 21 closure order is not made in relation to the place; 22 and 23 (b) that the making of a closure order is necessary to 24 prevent any offence under, or any act of prostitution in 25 circumstances mentioned in, a closure offence provision 26 from occurring in the specified place. 27 (3) A closure notice may be issued in relation to a specified place 28 if -- 29 (a) the issuing police officer believes on reasonable grounds 30 that -- 31 (i) a prostitution business is being conducted in the 32 specified place; and page 97 Prostitution Bill 2011 Part 7 Enforcement Division 7 Closure notices and closure orders s. 131 1 (ii) the specified place is not a place to which a 2 current operator's licence, or a current 3 prostitute's licence (self-employed), applies; 4 and 5 (b) the Commissioner has received a written complaint 6 alleging that a prostitution business is being conducted 7 in the specified place -- 8 (i) from the Department; or 9 (ii) from a local government; or 10 (iii) from 3 unrelated adults. 11 (4) In subsection (3)(b)(iii) -- 12 3 unrelated adults means 3 adults each of whom -- 13 (a) resides in different dwellings; and 14 (b) is not -- 15 (i) a child or step-child; or 16 (ii) a parent or step-parent; or 17 (iii) a sibling or step-brother or step-sister; or 18 (iv) an aunt or uncle; or 19 (v) a spouse or former spouse; or 20 (vi) a de facto partner or former de facto partner, 21 of either of the other 2 adults. 22 (5) A closure notice cannot be issued unless a police officer who is 23 an Assistant Commissioner, the Deputy Commissioner or the 24 Commissioner authorises, orally or in writing, the issue of the 25 notice. 26 (6) An authority under subsection (5) given orally must be 27 confirmed in writing as soon as is practicable. 28 (7) A closure notice cannot be issued unless -- 29 (a) an application has been made to the Magistrates Court 30 for a closure order in relation to the specified premises; 31 and page 98 Prostitution Bill 2011 Enforcement Part 7 Closure notices and closure orders Division 7 s. 132 1 (b) reasonable steps have been taken to establish the identity 2 of each person who -- 3 (i) owns, or regularly occupies, the specified place; 4 or 5 (ii) owns, or regularly occupies, another place that is 6 adjacent to the specified place whose access to 7 the other place would be impeded if a closure 8 order is made in relation to the specified place; 9 and 10 (c) reasonable steps have been taken to inform each person 11 mentioned in paragraph (b) of the date, time and place 12 of the hearing of the application for a closure order in 13 relation to the specified place. 14 132. Content of closure notice 15 (1) A closure notice must -- 16 (a) be in a form approved by the Commissioner; and 17 (b) state either or both of the following -- 18 (i) that a person, other than a person who owns, or 19 regularly occupies a specified place, must not 20 enter or remain in the place; 21 (ii) that a specified visitor or specified class of 22 visitor to a specified place must not enter or 23 remain in the place; 24 and 25 (c) state that failure to comply with the notice is an offence; 26 and 27 (d) specify the matters mentioned in section 131(2)(a) 28 and (b) or 131(3)(a) and (b) that are relevant to the case; 29 and 30 (e) state the date, time and place of the hearing of the 31 application for a closure order in relation to the specified 32 place; and page 99 Prostitution Bill 2011 Part 7 Enforcement Division 7 Closure notices and closure orders s. 133 1 (f) state that failure to comply with a closure order is an 2 offence. 3 (2) If section 131(3)(b)(iii) applies in a case, it is not necessary to 4 specify in the closure notice the identities of the 3 unrelated 5 adults. 6 133. Service of closure notice 7 (1) A closure notice is of no effect unless a copy of it -- 8 (a) is affixed to a prominent part of the specified place and 9 to each door to the place; and 10 (b) is given -- 11 (i) to at least one person who owns or regularly 12 occupies the place; and 13 (ii) to at least one person who regularly occupies 14 each of the other places that is adjacent to the 15 specified place whose access to the other place 16 would be impeded if a closure order is made in 17 relation to the specified place. 18 (2) A police officer may enter and remain in a specified place for 19 the purpose of -- 20 (a) affixing a closure notice to a prominent part of the 21 specified place and to each door to the place; or 22 (b) giving a notice to a person in accordance with 23 subsection (1)(b). 24 (3) The CEO must be given a copy of each closure notice. 25 134. Duration of closure notice 26 A closure notice has effect when section 133(1) has been 27 complied with until the application for the closure order in 28 relation to the specified premises is finalised. page 100 Prostitution Bill 2011 Enforcement Part 7 Closure notices and closure orders Division 7 s. 135 1 135. Provisions about making closure order 2 (1) The Magistrates Court must endeavour to ensure that the first 3 listing date for an application for a closure order is not more 4 than 7 days after the application is made. 5 (2) On an application for a closure order in relation to a specified 6 place the Magistrates Court may order either or both of the 7 following -- 8 (a) that a person, other than a person who owns, or regularly 9 occupies the specified place, must not enter or remain in 10 the place; 11 (b) that a specified visitor or specified class of visitor to the 12 specified place must not enter or remain in the place. 13 (3) A closure order may be made under subsection (4) or (5). 14 (4) The Magistrates Court may make a closure order if it is satisfied 15 (on the balance of probabilities) -- 16 (a) that an offence under, or an act of prostitution in 17 circumstances mentioned in, a closure offence 18 provision -- 19 (i) has occurred in the specified place; or 20 (ii) is occurring in the specified place; or 21 (iii) is likely to occur in the specified place if a 22 closure order is not made in relation to the place; 23 and 24 (b) that the making of a closure order is necessary to 25 prevent any offence under, or any act of prostitution in 26 circumstances mentioned in, a closure offence provision 27 from occurring in the specified place. 28 (5) The Magistrates Court may make a closure order if it is satisfied 29 (on the balance of probabilities) that -- 30 (a) a prostitution business is being conducted in the 31 specified place; and page 101 Prostitution Bill 2011 Part 7 Enforcement Division 7 Closure notices and closure orders s. 136 1 (b) the specified place is not a place to which a current 2 operator's licence, or a current prostitute's licence 3 (self-employed), applies. 4 (6) The Magistrates Court is not to make a closure order unless it is 5 satisfied -- 6 (a) that reasonable steps have been taken to establish the 7 identity of each person who -- 8 (i) owns, or regularly occupies, the specified place; 9 or 10 (ii) owns, or regularly occupies, another place that is 11 adjacent to the specified place whose access to 12 the other place would be impeded if a closure 13 order is made in relation to the specified place; 14 and 15 (b) that reasonable steps have been taken to inform each 16 person mentioned in paragraph (a) of the date, time and 17 place of the hearing of the application. 18 (7) If a court makes a closure order it may make such ancillary 19 orders as it thinks appropriate in relation to -- 20 (a) restrictions on access to a specified part or parts of a 21 specified place; or 22 (b) restrictions on access by a specified person or specified 23 class of persons including a person who owns, regularly 24 occupies, or visits a specified place; or 25 (c) any other matter relevant to the enforcement of the 26 order. 27 136. Term of closure order 28 (1) The court must specify in a closure order the term for which the 29 closure order remains in force. 30 (2) The term cannot be for more than 6 months after the closure 31 order is made. page 102 Prostitution Bill 2011 Enforcement Part 7 Restraining orders Division 8 s. 137 1 (3) An application may be made for the term of a closure order to 2 be extended but the extended term cannot be for more than 3 6 months after the original closure order was made. 4 137. Service of closure order 5 (1) A closure order is of no effect unless a copy of it is affixed to a 6 prominent part of the specified place and to each door to the 7 place. 8 (2) A police officer may enter and remain in a specified place for 9 the purpose of affixing a closure order to a prominent part of the 10 specified place and to each door to the place. 11 (3) The CEO must be given a copy of each closure order. 12 138. Breach of closure notice, closure order 13 A person must not enter or remain in a place in contravention of 14 a closure notice or a closure order. 15 Penalty: a fine of $12 000 or imprisonment for one year. 16 Division 8 -- Restraining orders 17 139. Term used: restraining order 18 In this Division, unless the contrary intention appears -- 19 restraining order means a restraining order made under 20 section 140 or 141. 21 140. Restraining order to prevent further offence 22 A court may make a restraining order if the court -- 23 (a) finds that a person has committed -- 24 (i) an offence under section 9 or 10; or 25 (ii) an offence under this Act that is prescribed for 26 the purposes of this section; 27 and page 103 Prostitution Bill 2011 Part 7 Enforcement Division 8 Restraining orders s. 141 1 (b) is satisfied that, unless restrained, the person is 2 subsequently likely to commit an offence of a similar 3 kind; and 4 (c) considers that making the order would be appropriate in 5 the circumstances. 6 141. Restraining order against person who could be required to 7 move on 8 (1) If circumstances arise that would give sufficient grounds for a 9 police officer to give a person a direction under section 106 and 10 that person has previously been given a direction under that 11 provision, the police officer may apply for a restraining order 12 against the person. 13 (2) The application must be made -- 14 (a) if the person against whom the order is sought is a child, 15 to the Children's Court; or 16 (b) otherwise, to the Magistrates Court. 17 (3) If the court to which the application is made considers it 18 appropriate in the circumstances to do so, it may make a 19 restraining order. 20 142. Provisions about making the order 21 (1) A court is not to make a restraining order against a person 22 unless the person has been given an opportunity to be heard on 23 the matter. 24 (2) If a restraining order has been, or is about to be, made against a 25 person and the person is present, the court may, in order to 26 facilitate service of the restraining order, order the person to 27 remain in a place designated by the court for a period of not 28 more than one hour until the order is served on the person. 29 143. Terms of restraining order 30 (1) If the restraining order is made under section 140, it may 31 impose any restraints on the lawful activities and behaviour of page 104 Prostitution Bill 2011 Enforcement Part 7 Restraining orders Division 8 s. 144 1 the person against whom it is made that the court considers 2 appropriate to prevent the person from subsequently committing 3 an offence similar in kind to the offence the person is found to 4 have committed or from subsequently giving a police officer 5 grounds for giving the person a direction under section 106. 6 (2) If the restraining order is made under section 141, it may 7 impose any restraints on the lawful activities and behaviour of 8 the person against whom it is made that the court considers 9 appropriate to prevent the person from subsequently giving a 10 police officer grounds for giving the person a direction under 11 section 106. 12 (3) Without limiting the restraints that may be imposed, the order 13 may restrain the person against whom it is made from -- 14 (a) being in or near a specified place or in a specified 15 locality or place; or 16 (b) engaging in behaviour of a specified kind, either at all or 17 in a specified place, at a specified time, or in a specified 18 manner. 19 (4) In subsection (3) -- 20 specified means specified in the order. 21 (5) A restraint may be imposed absolutely or on any terms the court 22 considers appropriate. 23 (6) A restraining order may restrain the person against whom it is 24 made from entering or remaining in a place, or restrict the 25 person's access to a place, even if the person has a legal or 26 equitable right to be there. 27 144. Duration of restraining order 28 (1) A restraining order takes effect when it is served on the person 29 against whom it is made or, if a later time is specified in the 30 order, at that time. page 105 Prostitution Bill 2011 Part 7 Enforcement Division 8 Restraining orders s. 145 1 (2) Unless it is cancelled sooner, a restraining order remains in 2 effect for the period specified in the order or, if no period is 3 specified, for one year from the day on which it took effect. 4 145. Variation or cancellation 5 (1) An application for the court to vary or cancel a restraining order 6 may be made by a police officer nominated by the 7 Commissioner or, with the leave of the court, by the person 8 against whom the order was made. 9 (2) The application must be made -- 10 (a) if the person against whom the order was made is a 11 child, to the Children's Court; or 12 (b) otherwise, to the Magistrates Court, 13 and must be accompanied by an affidavit in support of the 14 application. 15 (3) If subsection (1) requires the leave of the court for an 16 application to be made, an application seeking leave must be 17 accompanied by an affidavit disclosing all facts material to the 18 application, whether supporting or adverse to the application, 19 that are known to the applicant. 20 (4) Neither the application nor the affidavit can be served on the 21 person upon whose application the restraining order was made 22 (the respondent) unless the court orders under subsection (6) 23 that they must be served on the respondent. 24 (5) Even though the giving of leave may not be prevented by 25 subsection (7), the court may refuse the application for leave if 26 it considers that -- 27 (a) the affidavit does not disclose everything required by 28 subsection (3) to be disclosed; or 29 (b) the facts disclosed by the affidavit do not give sufficient 30 reason to vary or cancel the restraining order. page 106 Prostitution Bill 2011 Enforcement Part 7 Restraining orders Division 8 s. 146 1 (6) Before the court grants an application for leave it must -- 2 (a) order that a copy of the application and accompanying 3 affidavit be served on the respondent; and 4 (b) give the respondent an opportunity to oppose the 5 application for leave. 6 (7) Leave is not to be given unless the court is satisfied there has 7 been a substantial change in the relevant circumstances since the 8 restraining order was made. 9 (8) The person against whom a restraining order was made and the 10 respondent must be given an opportunity to be heard at the 11 hearing of an application to vary or cancel the order. 12 (9) At the hearing of the application to vary or cancel a restraining 13 order, the court may receive as evidence any record of evidence 14 given or affidavit filed in connection with an application for 15 leave mentioned in subsection (3). 16 (10) The court may dispose of the application to vary or cancel a 17 restraining order by -- 18 (a) dismissing the application; or 19 (b) making a new restraining order in addition to the 20 original restraining order; or 21 (c) cancelling the original restraining order with or without 22 making a new restraining order. 23 (11) Anything in this Division that applies to a restraining order 24 made in the first instance also applies to a new restraining order 25 made under this section. 26 146. Court to notify parties of decision 27 If a person who was entitled to be given an opportunity to be 28 heard was not present when the court disposed of the 29 application to vary or cancel a restraining order, the registrar 30 must notify the person of how the application was disposed of. page 107 Prostitution Bill 2011 Part 7 Enforcement Division 8 Restraining orders s. 147 1 147. When cancellation takes effect 2 The cancellation of a restraining order has effect -- 3 (a) if another restraining order is made when the original 4 order is cancelled, at the time the new order takes effect; 5 or 6 (b) otherwise, at the conclusion of the hearing at which the 7 order was cancelled. 8 148. Provisions about children 9 (1) A restraining order must not be made against a child who is 10 under 10 years of age. 11 (2) In an application to vary or cancel a restraining order against a 12 child, the Young Offenders Act 1994 section 45 applies as if the 13 matter were proceedings for an offence. 14 (3) If the Children's Court hears an application for a restraining 15 order under section 141 against a person or an application to 16 vary or cancel a restraining order against a person in the belief 17 that the person is a child when in fact the person is not a 18 child -- 19 (a) as soon as it becomes aware the person is not a child, the 20 Children's Court must transfer the matter to the 21 Magistrates Court; and 22 (b) the Children's Court proceedings are not, for that 23 reason, invalidated; and 24 (c) an order made by the Children's Court before it became 25 aware the person was not a child, is as valid and has the 26 same effect as if it had been made by the Magistrates 27 Court. page 108 Prostitution Bill 2011 Enforcement Part 7 Restraining orders Division 8 s. 149 1 (4) If the Magistrates Court hears an application for a restraining 2 order under section 141 against a person or an application to 3 vary or cancel a restraining order against a person in the belief 4 that the person is not a child when in fact the person is a 5 child -- 6 (a) as soon as it becomes aware the person is a child, the 7 Magistrates Court must transfer the matter to the 8 Children's Court; and 9 (b) the Magistrates Court proceedings are not, for that 10 reason, invalidated; and 11 (c) an order made by the Magistrates Court before it 12 became aware the person was a child, is as valid and has 13 the same effect as if it had been made by the Children's 14 Court. 15 (5) If a court transfers a matter to another court under this section, 16 the registrar of each court must give effect to the transfer. 17 149. Order not to conflict with family order 18 If a court does not have jurisdiction to adjust a family order, 19 within the meaning of the Restraining Orders Act 1997 20 section 5, the court is not to make a restraining order that 21 conflicts with that family order. 22 150. Regulations relating to restraining order applications 23 The regulations may provide for -- 24 (a) the making of applications for the making, variation or 25 cancellation of restraining orders; and 26 (b) the making of applications seeking leave to make an 27 application for the variation or cancellation of 28 restraining orders; and 29 (c) the procedure on the hearing of such applications. page 109 Prostitution Bill 2011 Part 7 Enforcement Division 9 Undercover officers s. 151 1 151. Breach of restraining order 2 A person must not contravene a restraining order made against 3 the person. 4 Penalty: a fine of $5 000. 5 Division 9 -- Undercover officers 6 152. Undercover officers 7 (1) In this section -- 8 Minister means the Minister responsible for the administration 9 of the Police Act 1892; 10 offence means an offence under this Act; 11 undercover officer means a police officer acting as an 12 undercover officer under this section. 13 (2) The Commissioner may, in writing, authorise a police officer to 14 act as an undercover officer and may in writing revoke that 15 authority. 16 (3) Before authorising a police officer to act as an undercover 17 officer the Commissioner must ensure that the police officer is a 18 suitable person to have the functions of, and the immunity given 19 to, an undercover officer. 20 (4) The identity or purpose of an undercover officer may, for the 21 time being, be concealed or misrepresented for the purpose of 22 detecting the commission of an offence. 23 (5) An undercover officer may do anything specified in the 24 authorisation given by the Commissioner for the purpose of 25 detecting the commission of an offence. 26 (6) If an undercover officer does anything as described in 27 subsection (5) -- 28 (a) the Commissioner and the undercover officer do not 29 commit an offence and are not liable as a party to an 30 offence committed by another person; and page 110 Prostitution Bill 2011 Enforcement Part 7 Undercover officers Division 9 s. 152 1 (b) the undercover officer's evidence in any proceedings 2 against another person for an offence in connection with 3 which the undercover officer did anything as described 4 in subsection (5) is not the evidence of an accomplice. 5 (7) The Commissioner is required, whenever requested to do so by 6 the Minister, to give the Minister a report in writing containing 7 such particulars of the activities of undercover officers as the 8 Minister requires. page 111 Prostitution Bill 2011 Part 8 Review by State Administrative Tribunal s. 153 1 Part 8 -- Review by State Administrative Tribunal 2 153. Review 3 (1) A person who is aggrieved by a decision of the CEO -- 4 (a) to refuse to issue or renew a licence; or 5 (b) about the imposition, variation or revocation of a licence 6 condition; or 7 (c) to suspend or revoke a licence; or 8 (d) to make a prohibition order under section 120 or an 9 order varying or revoking a prohibition order; or 10 (e) to refuse to give approval under section 180 or about the 11 imposition of a condition on an approval, 12 may apply to the State Administrative Tribunal for a review of 13 the decision. 14 (2) The Commissioner is a party to a review under subsection (1). 15 (3) A person who is aggrieved by a decision of the Commissioner 16 to give a barring notice under section 128(1) may apply to the 17 State Administrative Tribunal for a review of the decision, 18 whether or not the person has made an application under 19 section 128(10). 20 (4) Subsection (3) applies only if the notice -- 21 (a) has effect for one month or longer; or 22 (b) has effect for any shorter period that, when added to the 23 period of any barring notice previously given to the 24 person in respect of the place or a place of the particular 25 class (as the case requires) that is the subject of the 26 notice, results in the person being prohibited from that 27 place or that class of place for longer than one month in 28 any 12 month period. page 112 Prostitution Bill 2011 Evidence Part 9 s. 154 1 Part 9 -- Evidence 2 154. Allegations in prosecution notices 3 (1) In this section -- 4 specified means specified in the prosecution notice. 5 (2) In proceedings for an offence under this Act, an allegation in the 6 prosecution notice that at a specified time a licence of a 7 specified kind was or was not in effect in relation to a specified 8 person is to be taken to be proved in the absence of evidence to 9 the contrary. 10 (3) In proceedings for an offence under section 18(1), (2) or (4), 19, 11 20(1) or (2), 21, 22, 23, 24, 25, 26, 28, 31(3) or (4), 32(3), 12 34(2), 35(2) or 41(1) or (3), an allegation in the prosecution 13 notice that a specified person was operating, managing or 14 conducting a prostitution business is to be taken to be proved in 15 the absence of evidence to the contrary. 16 (4) In proceedings for an offence under section 17(2) or (3), an 17 allegation in the prosecution notice that a contract or 18 arrangement was for the promotion or publicising of a specified 19 person as a prostitute or a specified prostitution business is to be 20 taken to be proved in the absence of evidence to the contrary. 21 155. Presumptions about intention 22 (1) If, in proceedings for an offence under section 9(1) or 10(1), it 23 is proved that the accused was loitering in or frequenting a place 24 in circumstances giving reasonable grounds for suspecting that 25 the accused had an intention described in section 9(3)(b) 26 or 10(2)(b), it is to be presumed that the accused had that 27 intention unless the contrary is proved. 28 (2) If, in proceedings for an offence under section 36(2), it is 29 proved that the accused was doing something in circumstances 30 giving reasonable grounds for suspecting that the person had an 31 intention described in section 36(2), it is to be presumed that the 32 accused had that intention unless the contrary is proved. page 113 Prostitution Bill 2011 Part 9 Evidence s. 156 1 156. Presumptions about nature of advertisements 2 (1) If, in proceedings for an offence under section 27(1), it is 3 proved that there are reasonable grounds for suspecting that an 4 advertisement was -- 5 (a) for a prostitution business; or 6 (b) to the effect that a particular person is available to act as 7 a prostitute, 8 it is to be presumed that the advertisement was for a prostitution 9 business, or to the effect that a particular person is available to 10 act as a prostitute, unless the contrary is proved. 11 (2) Subsection (1) -- 12 (a) applies if the accused is alleged to have placed, or to 13 have sought to place, the publication of the 14 advertisement that is the subject of the charge; but 15 (b) does not apply if the accused is alleged to have 16 published the advertisement that is the subject of the 17 charge. 18 157. Accused presumed to know if person is a child 19 If, in proceedings for an offence under this Act, it is relevant 20 whether or not a person was a child, it is to be conclusively 21 presumed that the accused knew that the person was a child 22 unless it is proved that, having taken all reasonable steps to find 23 out the age of the person concerned, the accused believed on 24 reasonable grounds, at the time the offence is alleged to have 25 been committed, that the person concerned had reached 18 or 26 more years of age. 27 158. Person residing with child prostitute presumed to receive 28 payment 29 If in proceedings for an offence under section 37(1) it is proved 30 that, at the time of the offence, the accused was residing with a 31 prostitute who was a child, the accused is presumed to be guilty 32 of the offence unless the contrary is proved. page 114 Prostitution Bill 2011 Evidence Part 9 s. 159 1 159. Accused presumed to have allowed presence of child 2 If, in proceedings for an offence under section 40, it is proved 3 that a child was in a place at a particular time, the accused is 4 conclusively presumed to have allowed the child to enter or 5 remain in the place unless it is proved that the accused did not 6 know, and could not reasonably have known, that a child was in 7 the place at that time. 8 160. Presumptions about operating or managing prostitution 9 business without licence 10 If, in proceedings for an offence under section 45(1) or (4) 11 or 46(1), it is proved that the accused was present in a place 12 and -- 13 (a) the content, or manner of publication, of an 14 advertisement gave reasonable grounds for suspecting 15 that -- 16 (i) a prostitution business was being conducted in 17 the place; or 18 (ii) a particular person was available to act as a 19 prostitute in the place; 20 or 21 (b) also present in or outside the place were one or more 22 persons who had been convicted of, or dealt with by 23 way of infringement notice for, an offence under 24 Part 2, 3, 5 or 6 of this Act or under the Prostitution 25 Act 2000 Part 2 or 3; or 26 (c) the content, or manner, of a communication given by a 27 person in the place gave reasonable grounds for 28 suspecting that that person or another person was 29 available to take part in an act of prostitution, whether in 30 the place or elsewhere, 31 it is to be presumed that the accused was operating or managing 32 a prostitution business, as is relevant to the case, unless the 33 contrary is proved. page 115 Prostitution Bill 2011 Part 9 Evidence s. 161 1 161. Presumptions about acting or operating as a prostitute 2 without licence or without verifying identity etc. for 3 operator 4 If, in proceedings for an offence under section 47(1) or (2), it is 5 proved that the accused was present in a place and -- 6 (a) the content, or manner of publication, of an 7 advertisement gave reasonable grounds for suspecting 8 that -- 9 (i) a prostitution business was being conducted in 10 the place; or 11 (ii) a particular person was available to act as a 12 prostitute in the place; 13 or 14 (b) also present in or outside the place were one or more 15 persons who had been convicted of, or dealt with by 16 way of infringement notice for, an offence under 17 Part 2, 3, 5 or 6 of this Act or under the Prostitution 18 Act 2000 Part 2 or 3; or 19 (c) the content, or manner, of a communication given by a 20 person in the place gave reasonable grounds for 21 suspecting that that person or another person was 22 available to take part in an act of prostitution, whether in 23 the place or elsewhere, 24 it is to be presumed that the accused was acting as a prostitute, 25 or operating a prostitution business, in the place, as is relevant 26 to the case, unless the contrary is proved. 27 162. Certificate evidence about licences 28 (1) In this section -- 29 specified means specified in a certificate. page 116 Prostitution Bill 2011 Evidence Part 9 s. 163 1 (2) For the purposes of any proceedings under this Act, a certificate 2 purporting to be signed by the CEO or any person authorised by 3 the CEO for that purpose and stating any of the following -- 4 (a) that on a specified date or during a specified period a 5 person specified in the certificate was or was not the 6 holder of an operator's licence, a manager's licence, a 7 prostitute's licence (general) or a prostitute's licence 8 (self-employed); 9 (b) any condition imposed under section 64 in respect of a 10 specified licence; 11 (c) any other matter contained in the register at any time in 12 respect of a specified licence or specified person, 13 is evidence of the facts stated in the certificate. 14 163. Certificate that undercover officer was authorised 15 A certificate purporting to be signed by the Commissioner or 16 any person authorised by the Commissioner for that purpose and 17 stating that the person named in that certificate was, at the time 18 or during the period specified in that certificate -- 19 (a) a police officer acting as an undercover officer under 20 section 152; and 21 (b) authorised to do anything stated in the certificate, 22 is evidence of the facts stated in the certificate. 23 164. Presumptions about authority to do certain things 24 (1) In the absence of evidence to the contrary, proof is not required 25 in any proceedings for an offence under this Act -- 26 (a) that the prosecutor is authorised to commence the 27 prosecution; or 28 (b) that the prosecutor has the Commissioner's approval if 29 required under section 167(3); or page 117 Prostitution Bill 2011 Part 9 Evidence s. 165 1 (c) that a signature on the prosecution notice alleging the 2 offence is the signature of a person authorised to 3 commence the prosecution. 4 (2) In the absence of evidence to the contrary, proof is not required 5 in any proceedings under this Act -- 6 (a) that what purports to be a certificate under section 162 7 or 163, is the certificate that it purports to be; or 8 (b) of the signature or proof that the person signing was a 9 person who could give the certificate. 10 (3) For the purposes of any proceedings under this Act, it is not 11 necessary to prove the appointment or authorisation of -- 12 (a) the CEO; or 13 (b) the Commissioner, an Assistant Commissioner or 14 Deputy Commissioner of Police or any other police 15 officer; or 16 (c) an authorised person as defined in section 92, 17 and a signature purporting to be the signature of such an office 18 holder is evidence of the signature it purports to be. 19 165. Possession of quantity of sheaths not evidence of offence 20 (1) In this section -- 21 being involved in prostitution includes the following -- 22 (a) taking part in, or seeking to take part in, an act of 23 prostitution; 24 (b) inviting or otherwise seeking another person to take part 25 in an act of prostitution; 26 (c) being involved in any business through which 27 prostitution is provided. 28 (2) In proceedings for an offence under this Act, evidence relating 29 to a person's possession of any quantity of sheaths as defined in 30 section 30 is not, of itself, evidence of that person, or any other 31 person, being involved in prostitution. page 118 Prostitution Bill 2011 Prostitution Account Part 10 s. 166 1 Part 10 -- Prostitution Account 2 166. Prostitution Account 3 (1) In this Part -- 4 Minister means the Minister to whom the administration of this 5 Part is for the time being committed by the Governor. 6 (2) An agency special purpose account called the Prostitution 7 Account is established under the Financial Management 8 Act 2006 section 16. 9 (3) There is to be credited to the Account -- 10 (a) the prescribed proportion of each fee paid under Part 6; 11 and 12 (b) each fine paid in respect of a conviction for an offence 13 under this Act; and 14 (c) the money paid as a modified penalty stated in each 15 infringement notice issued for an alleged offence under 16 this Act; and 17 (d) any money appropriated by Parliament for the purposes 18 of the Account; and 19 (e) any money received by way of donation, or otherwise 20 lawfully received, for the Account. 21 (4) For the purposes of the Financial Management Act 2006 and the 22 Auditor General Act 2006 the Account is to be administered by 23 the department of the Public Service principally assisting the 24 Minister in the administration of this Part. 25 (5) Money standing to the credit of the Account may be paid out of 26 the Account at the direction of the Minister, as reimbursement 27 or otherwise -- 28 (a) for a purpose associated with the administration of this 29 Act including the provision of support and information 30 to people who wish to stop working in the prostitution 31 industry; or page 119 Prostitution Bill 2011 Part 10 Prostitution Account s. 166 1 (b) for a purpose associated with the enforcement of this 2 Act; or 3 (c) for the purpose of refunding, in whole or in part, a fee if 4 the refund is in accordance with the regulations. page 120 Prostitution Bill 2011 General provisions Part 11 s. 167 1 Part 11 -- General provisions 2 167. Prosecutions 3 (1) A prosecution for an offence under this Act can be commenced 4 only by a police officer. 5 (2) Despite subsection (1), a prosecution for an offence under Part 3 6 or 6 or section 16, 17(2), 94 or 103(1) or (2) can be commenced 7 by the CEO. 8 (3) A prosecution for an offence under section 45(1) or (4), 46(1) 9 or 47(1) or (2) requires the approval of the Commissioner if the 10 prosecutor intends to rely on one or more of the presumptions 11 under section 160 or 161. 12 (4) Subsections (1), (2) and (3) do not limit the functions of the 13 Director of Public Prosecutions under the Director of Public 14 Prosecutions Act 1991 section 11. 15 (5) All prosecutions for simple offences under this Act must be 16 heard in a court of summary jurisdiction constituted by a 17 magistrate. 18 168. Issue of infringement notice to be preferred for first offences 19 under s. 47(1) 20 (1) A police officer is to issue an infringement notice in preference 21 to commencing a prosecution for an offence under section 47(1) 22 if -- 23 (a) the alleged offender has not been convicted of an 24 offence under section 47(1); and 25 (b) the alleged offender has not been dealt with by way of 26 infringement notice for an offence under section 47(1); 27 and 28 (c) it is otherwise appropriate to do so having regard to the 29 circumstances of the alleged offender or the offence. page 121 Prostitution Bill 2011 Part 11 General provisions s. 169 1 (2) Nothing in subsection (1) affects a decision as to whether to 2 issue an infringement notice for a second or subsequent offence 3 under section 47(1). 4 169. Penalties for bodies corporate 5 The provision in this Act of a penalty for a body corporate does 6 not affect the operation of the Sentencing Act 1995 section 40(5) 7 in relation to an offence under this Act that does not provide for 8 a penalty for a body corporate. 9 170. Protection from liability 10 (1) An action in tort does not lie against a person for anything that 11 the person has done, in good faith, in the performance or 12 purported performance of a function under this Act. 13 (2) The protection given by subsection (1) applies even though the 14 thing done as described in subsection (1) may have been 15 capable of being done whether or not this Act had been enacted. 16 (3) Despite subsection (1), the State is not relieved of any liability 17 that it might have for a person having done anything as 18 described in that subsection. 19 (4) In this section, a reference to the doing of anything includes a 20 reference to an omission to do anything. 21 171. Exchange of information between State authorities 22 (1) A State authority specified in subsection (4) may disclose to 23 another State authority specified in subsection (4) any 24 information that is, or could reasonably be expected to be, 25 relevant to the performance of a function of the State authority 26 to which the information is disclosed. 27 (2) If an administrative head mentioned in subsection (4), in 28 writing, requests another administrative head mentioned in 29 subsection (4) to disclose any information, the administrative 30 head receiving the request must comply with the request. page 122 Prostitution Bill 2011 General provisions Part 11 s. 171 1 (3) Nothing in this section requires or authorises the disclosure of 2 confidential police information. 3 (4) The State authorities specified in this subsection are -- 4 (a) the CEO (who is the administrative head) and persons 5 employed in the Department; and 6 (b) the Commissioner (who is the administrative head), 7 police officers, and persons employed in the department 8 of the Public Service principally assisting in the 9 administration of the Police Act 1892; and 10 (c) the chief executive officer of the department of the 11 Public Service principally assisting in the administration 12 of the Young Offenders Act 1994 (who is the 13 administrative head) and persons employed in that 14 department; and 15 (d) the chief executive officer of the department of the 16 Public Service principally assisting in the administration 17 of the Children and Community Services Act 2004 (who 18 is the administrative head) and persons employed in that 19 department. 20 (5) The authority given by this section to disclose information 21 applies even though the disclosure may be contrary to any duty 22 of confidentiality imposed by law or otherwise arising and 23 whether or not the duty of confidentiality arose before this Act 24 commenced but, without limiting the authority given by this 25 section to disclose information, a person to whom confidential 26 information is disclosed under this section is bound by the same 27 duty of confidentiality as applied to the person making the 28 disclosure. 29 (6) A person making a disclosure under this section incurs no civil 30 or criminal liability as a result of the disclosure, and is not to be 31 regarded for any purpose as being in breach of the duty of 32 confidentiality. page 123 Prostitution Bill 2011 Part 11 General provisions s. 172 1 172. Confidentiality 2 (1) A person who is or has been engaged in the performance of 3 functions under this Act must not, directly or indirectly, record, 4 disclose or make use of any information obtained in the 5 performance of those functions except -- 6 (a) in the course of duty; or 7 (b) as required or allowed by this Act or any other written 8 law; or 9 (c) for the purpose of proceedings for an offence under this 10 Act; or 11 (d) with the written authority of the person to whom the 12 information relates; or 13 (e) in prescribed circumstances. 14 Penalty: a fine of $5 000. 15 (2) Subsection (1) does not apply to the disclosure of statistical or 16 other information that could not reasonably be expected to lead 17 to the identification of any person to whom it relates. 18 173. Liability of managerial officer for offence by body corporate 19 (1) In this section -- 20 managerial officer means -- 21 (a) a director or secretary of the body; or 22 (b) a person who at any time takes responsibility for the 23 management of a business conducted by the body; or 24 (c) if the body is a proprietary company, a person who is a 25 shareholder of the body. 26 (2) If a body corporate is found to have committed an offence under 27 this Act, each person who is a managerial officer of the body is 28 to be treated as having committed the offence unless the person 29 proves that -- 30 (a) the offence was committed without the person's consent 31 or connivance; and page 124 Prostitution Bill 2011 General provisions Part 11 s. 174 1 (b) the person exercised all such due diligence to prevent 2 the commission of the offence as ought to have been 3 exercised having regard to the nature of the person's 4 functions and to all the circumstances. 5 174. Liability of operator for offence by manager 6 (1) If a person who holds a manager's licence commits an offence 7 under this Act as the holder of that licence, each person who 8 holds an operator's licence for the prostitution business 9 concerned is to be treated as having committed the offence and 10 is liable to the penalty prescribed for the offence committed by 11 the person who holds the manager's licence. 12 (2) A person who holds an operator's licence for a prostitution 13 business is not to be treated as having committed the offence as 14 mentioned in subsection (1) if the person proves that -- 15 (a) the offence was committed without the person's consent 16 or connivance; and 17 (b) the person exercised all such due diligence to prevent 18 the commission of the offence as ought to have been 19 exercised having regard to the nature of the person's 20 functions and to all the circumstances. 21 175. Regulations 22 (1) The Governor may make regulations prescribing all matters that 23 are required or permitted by this Act to be prescribed or are 24 necessary or convenient to be prescribed for giving effect to the 25 purposes of this Act. 26 (2) Without limiting subsection (1), regulations may prescribe the 27 fees to be paid for the purposes of this Act and the persons 28 liable for payment. 29 (3) Without limiting the Interpretation Act 1984 section 45A, a 30 power conferred under this Act to prescribe a fee for a licence 31 includes power to prescribe a fee that will allow recovery of page 125 Prostitution Bill 2011 Part 11 General provisions s. 176 1 expenditure for the provision of support and information to 2 people who wish to stop working in the prostitution industry. 3 (4) The regulations may provide that contravention of a regulation 4 is an offence, and provide, for an offence against the 5 regulations, a penalty not exceeding a fine of $6 000. 6 176. Review of Act 7 (1) The Minister must carry out a review of the operation and 8 effectiveness of this Act as soon as is practicable after the third 9 anniversary of the commencement of this section. 10 (2) The Minister must prepare a report based on the review and, as 11 soon as is practicable after the report is prepared, cause it to be 12 laid before each House of Parliament. page 126 Prostitution Bill 2011 Repeals, transitional provisions Part 12 Repeals Division 1 s. 177 1 Part 12 -- Repeals, transitional provisions 2 Division 1 -- Repeals 3 177. Prostitution legislation repealed 4 (1) These Acts are repealed: 5 (a) the Prostitution Act 2000; 6 (b) the Prostitution Amendment Act 2008. 7 (2) The Prostitution (Restraining Orders) Regulations 2000 are 8 repealed. 9 Division 2 -- Transitional provisions arising from the 10 enactment of the Prostitution Act 2011 11 178. Terms used 12 In this Division -- 13 commencement day means the day on which section 177(1) 14 comes into operation; 15 repealed Act means the Prostitution Act 2000. 16 179. Duration of licences issued in first year 17 Despite section 66(1), a licence that is issued in the period 18 ending 12 months after commencement day may be issued for a 19 period not exceeding 3 years and 6 months. 20 180. Planning requirements as to existing prostitution businesses 21 (1) This section -- 22 (a) applies despite the provisions of Part 6 Division 8; and 23 (b) does not apply to a prostitution business operated by a 24 self-employed prostitute. 25 (2) Land may be used for the purposes of a prostitution business in 26 accordance with the approval of the CEO under this section. page 127 Prostitution Bill 2011 Part 12 Repeals, transitional provisions Division 2 Transitional provisions arising from the enactment of the Prostitution Act 2011 s. 180 1 (3) An application for the CEO's approval under this section must 2 be made -- 3 (a) before the expiry of the period of 3 months starting on 4 commencement day; and 5 (b) in the prescribed manner. 6 (4) The CEO must not approve the use of land for the purposes of a 7 prostitution business unless -- 8 (a) the CEO has informed the local government of the 9 district in which the land is located about the 10 application; and 11 (b) the CEO has asked the local government whether it is 12 opposed to the land being continued to be used for the 13 prostitution business; and 14 (c) the local government is not so opposed. 15 (5) The CEO must not approve the use of land for the purposes of a 16 prostitution business if there is in effect an order under 17 section 88(1) that prevents the CEO from issuing a licence to 18 any person to operate a prostitution business in the area in 19 which the land is located. 20 (6) Subject to subsections (4) and (5), the CEO may approve the 21 use of land for the purposes of a prostitution business for a 22 period not exceeding 18 months starting on commencement day, 23 if the CEO is satisfied -- 24 (a) that the land was being used for the prostitution business 25 as at commencement day and had been so used on a 26 continuous basis since 6 September 2008 or earlier; and 27 (b) having regard to all the matters mentioned in 28 subsection (7), that the business is being, and will 29 continue to be, managed appropriately. page 128 Prostitution Bill 2011 Repeals, transitional provisions Part 12 Transitional provisions arising from the enactment of the Division 2 Prostitution Act 2011 s. 180 1 (7) In considering an application the CEO must liaise with the local 2 government of the district in which the land is located and the 3 Commissioner with regard to -- 4 (a) whether the way in which the business has been 5 conducted has been the subject of complaints from 6 persons living or working in the area; and 7 (b) whether the way in which the business is conducted 8 causes, or is likely to cause, disturbance in the 9 neighbourhood; and 10 (c) whether conducting the business interferes, or is likely 11 to interfere, with the amenity of the neighbourhood. 12 (8) If a person applies for an operator's licence to operate the 13 business (whether or not on behalf of a company) and the CEO 14 decides to refuse to issue the licence, an approval under this 15 section in relation to the business ceases to have effect when the 16 later of the following events occurs -- 17 (a) the period for a review under section 153 of the decision 18 expires without an application for a review being made; 19 (b) a review of the decision is finalised and the decision is 20 upheld; 21 (c) a judicial review (for jurisdictional error) of an order 22 made or purportedly made under section 88(1) or 89(1) 23 in relation to the operator, or the area in which the 24 business is located, is finalised and the order is upheld, 25 but in any event the approval ceases to have effect when the 26 period for which the approval was given expires. 27 (9) The regulations may provide for matters relating to dealing with 28 applications including the imposition of conditions on an 29 approval and giving notice of the right of review under 30 section 153. 31 (10) The regulations cannot require or authorise the CEO to disclose 32 confidential police information. page 129 Prostitution Bill 2011 Part 12 Repeals, transitional provisions Division 2 Transitional provisions arising from the enactment of the Prostitution Act 2011 s. 181 1 181. Licensing requirements for operators of existing 2 prostitution businesses 3 (1) In this section -- 4 existing prostitution business means a prostitution business that 5 may be the subject of an application under section 180. 6 (2) Sections 18(1) and 45(1) and (4)(d) do not apply to an operator 7 of an existing prostitution business who makes an application 8 for an operator's licence for the business before the period of 9 3 months starting on commencement day expires, until the later 10 of the following -- 11 (a) the day on which the licence is issued; 12 (b) if the CEO decides to refuse to issue the licence, the day 13 on which the period of 7 days expires after the period 14 for a review of the decision under section 153 expires 15 without an application for a review being made; 16 (c) if the CEO decides to refuse to issue the licence and the 17 decision is reviewed under section 153, the day on 18 which the period of 7 days expires after the review is 19 finalised; 20 (d) if there is a judicial review (for jurisdictional error) of an 21 order made or purportedly made under section 88(1) 22 or 89(1) in relation to the operator, or the area in which 23 the business is located, the day on which the period of 24 7 days expires after the review is finalised. 25 (3) Sections 49(4)(c) and 55(7)(b) do not apply to an application for 26 the first operator's licence for an existing prostitution business 27 but the CEO must not issue the licence unless the CEO has 28 given approval under section 180 in relation to the business. 29 (4) Sections 55(8) and 56 do not apply to an application for the first 30 operator's licence for an existing prostitution business. 31 (5) Section 62(a) does not apply to the first operator's licence for an 32 existing prostitution business and instead, it is a condition of the 33 licence that the place in which the prostitution business is page 130 Prostitution Bill 2011 Repeals, transitional provisions Part 12 Transitional provisions arising from the enactment of the Division 2 Prostitution Act 2011 s. 182 1 conducted has, after the licence is granted, no more than the 2 number of rooms in which persons may take part in acts of 3 prostitution than it had before the licence was granted. 4 (6) Sections 66(1) and 179 do not apply to the first operator's 5 licence for an existing prostitution business and instead, the 6 duration of the licence is not to exceed the period during which 7 an approval under section 180 in relation to the business has 8 effect. 9 182. Restraining orders 10 (1) A restraining order that was made under section 37 of the 11 repealed Act and that was in effect immediately before 12 commencement day is, on and from commencement day, to be 13 taken to be a restraining order made under section 140 on the 14 terms applying to the restraining order immediately before 15 commencement day. 16 (2) A restraining order that was made under section 38 of the 17 repealed Act and that was in effect immediately before 18 commencement day is, on and from commencement day, to be 19 taken to be a restraining order made under section 141 on the 20 terms applying to the restraining order immediately before 21 commencement day. 22 (3) An application for a restraining order, or to vary or cancel a 23 restraining order, that had been made under Part 5 of the 24 repealed Act, but not finalised before commencement day is, on 25 and from commencement day, to be taken to be an application 26 for a restraining order, or to vary or cancel a restraining order, 27 as is relevant to the case, under Part 7 Division 8. 28 (4) An appeal under section 47 of the repealed Act that was started, 29 but not finalised, before commencement day must be dealt with 30 as if the repealed Act had not been repealed by section 177(1), 31 and a restraining order that is made or varied as a result of such 32 an appeal is to be taken to be a restraining order under Part 7 33 Division 8 on the terms applying to it when made or varied on 34 the appeal. page 131 Prostitution Bill 2011 Part 12 Repeals, transitional provisions Division 2 Transitional provisions arising from the enactment of the Prostitution Act 2011 s. 183 1 (5) Subsections (1) and (2) apply only to restraining orders under 2 the repealed Act that are not the subject of an appeal mentioned 3 in subsection (4). 4 183. Undercover officers 5 An authority under section 35 of the repealed Act to act as an 6 undercover officer that was in effect immediately before 7 commencement day is, on and from commencement day, to be 8 taken to be an authority under section 152(2) on the terms 9 applying to the authority immediately before commencement 10 day. page 132 Prostitution Bill 2011 Amendments to other Acts Part 13 s. 184 1 Part 13 -- Amendments to other Acts 2 184. Community Protection (Offender Reporting) Act 2004 3 amended 4 (1) This section amends the Community Protection (Offender 5 Reporting) Act 2004. 6 (2) In Schedule 2 delete the item relating to the Prostitution 7 Act 2000 and insert: 8 Prostitution Act 2011 s. 36 Causing, permitting, or seeking to induce child to act as prostitute s. 37 Obtaining payment for prostitution by a child 9 10 185. The Criminal Code amended 11 (1) This section amends The Criminal Code. 12 (2) Delete sections 190 and 191. 13 (3) In section 192(1)(b) delete "girl, who is not a common prostitute 14 or of known immoral character," and insert: 15 16 girl 17 18 (4) In section 557K(1) in the definition of child sex offender delete 19 paragraph (h) and insert: 20 21 (h) an offence committed under the Prostitution 22 Act 2011 section 9(1), 10(1), 36, 37, 38 or 42 23 that was committed against or in respect of a 24 child; or 25 page 133 Prostitution Bill 2011 Part 13 Amendments to other Acts s. 186 1 186. Criminal Property Confiscation Act 2000 amended 2 (1) This section amends the Criminal Property Confiscation 3 Act 2000. 4 (2) In section 131(2): 5 (a) after paragraph (f) insert: 6 7 (ga) for a purpose associated with the administration 8 of the Prostitution Act 2011 including the 9 provision of support and information to people 10 who wish to stop working in the prostitution 11 industry; and 12 13 (b) after each of paragraphs (a) to (e) insert: 14 15 and 16 17 187. Evidence Act 1906 amended 18 (1) This section amends the Evidence Act 1906. 19 (2) In section 36A(1) in the definition of sexual offence: 20 (a) delete paragraph (a) and insert: 21 22 (a) under The Criminal Code section 186 or the 23 Prostitution Act 2011 section 11, 38 or 42; or 24 25 (b) after each of paragraphs (b) and (ba) insert: 26 27 or 28 29 (3) In the Second Schedule Part 1 delete "s. 191 Procuration". page 134 Prostitution Bill 2011 Amendments to other Acts Part 13 s. 188 1 (4) In Schedule 7 Part A clause 1(1)(a) delete "Prostitution Act 2000" 2 and insert: 3 4 Prostitution Act 2011 5 6 (5) In Schedule 7 Part B in the item relating to The Criminal Code 7 delete "191 Procuration". 8 (6) In Schedule 7 Part B delete the item relating to the Prostitution 9 Act 2000 and insert: 10 Prostitution Act 2011 9(1) Seeking prostitute in or in view of or within hearing of public place 10(1) Seeking client in or in view or within hearing of public place 36 Causing, permitting, or seeking to induce child to act as prostitute 37 Obtaining payment for prostitution by child 38 Agreement for prostitution by child 39 Prostitution in place where child present 40 Allowing child to be in place involving prostitution 42 Acting as prostitute for child 11 12 188. Health Act 1911 amended 13 (1) This section amends the Health Act 1911. 14 (2) In section 3(1) delete the definition of venereal disease. page 135 Prostitution Bill 2011 Part 13 Amendments to other Acts s. 188 1 (3) In section 248 delete "venereal disease" and insert: 2 3 gonorrhoea, syphilis (including congenital syphilis), 4 soft chancre, venereal warts or granuloma 5 6 (4) Delete the heading to Part XI and insert: 7 8 Part XI -- Sexually transmissible infections and 9 disorders affecting the reproductive organs 10 11 (5) Before section 300 insert: 12 13 299. Term used: STI 14 In this Part -- 15 STI means a prescribed sexually transmissible 16 infection or a prescribed blood borne virus. 17 18 (6) Delete section 310(2). 19 (7) In section 330A(1) delete "venereal and other". 20 (8) In the provisions listed in the Table: 21 (a) delete "a venereal disease" (each occurrence) and insert: 22 23 an STI 24 25 (b) delete "any venereal disease" (each occurrence) and 26 insert: 27 28 an STI 29 page 136 Prostitution Bill 2011 Amendments to other Acts Part 13 s. 189 1 (c) delete "from venereal disease" (each occurrence) and 2 insert: 3 4 an STI 5 6 Table s. 300(1) and (2) s. 300A(1) s. 307(1), (2), (3), (4) and (5) s. 309(2) and (3) s. 310(1) s. 311(2) s. 313(1) s. 314(2) s. 377(3a) 7 Note: 8 1. The heading to amended section 300 is to read: 9 Notification of STI 10 2. The heading to amended section 310 is to read: 11 Offence to knowingly infect with STI 12 3. The heading to amended section 311 is to read: 13 Certain medical practitioners to treat STI free of charge 14 189. Liquor Control Act 1988 amended 15 (1) This section amends the Liquor Control Act 1988. 16 (2) In section 115(1)(b) delete "thief, prostitute" and insert: 17 18 thief 19 20 (3) In section 115(4a)(e) delete "prostitute,". page 137 Prostitution Bill 2011 Part 13 Amendments to other Acts s. 190 1 190. Sentencing Act 1995 amended 2 (1) This section amends the Sentencing Act 1995. 3 (2) In Schedule 1 insert in alphabetical order: 4 Prostitution Act 2011 Prostitution Account 5 6 191. Western Australian College of Teaching Act 2004 amended 7 (1) This section amends the Western Australian College of 8 Teaching Act 2004. 9 (2) In Schedule 2 item 1 delete "s. 191 Procuring person to be prostitute 10 etc.". 11 (3) In Schedule 2 delete item 2 and insert: 12 2. Prostitution Act 2011 s. 16 Promoting employment in prostitution industry s. 36 Causing, permitting, or seeking to induce child to act as prostitute s. 37 Obtaining payment for prostitution by child s. 38 Agreement for prostitution by child s. 39 Prostitution in place where child present s. 40 Allowing child to be in place involving prostitution s. 42 Acting as prostitute for child 13 page 138 Prostitution Bill 2011 Amendments to other Acts Part 13 s. 192 1 192. Workers' Compensation and Injury Management Act 1981 2 amended 3 (1) This section amends the Workers' Compensation and Injury 4 Management Act 1981. 5 (2) After section 11A insert: 6 7 12A. Exclusion of unauthorised prostitutes other than 8 minors and coerced persons 9 (1) In this section the following terms have the meaning 10 given to them in the Prostitution Act 2011 section 3 -- 11 act as a prostitute 12 operator's licence 13 prostitute's licence (general) 14 self-employed prostitute 15 (2) A person is deemed not to be a worker for the purposes 16 of this Act while the person acts as a prostitute in a 17 place -- 18 (a) that is not a place to which a current operator's 19 licence applies; or 20 (b) to which a current operator's licence applies 21 but -- 22 (i) without holding a current prostitute's 23 licence (general); or 24 (ii) there has not been compliance with the 25 Prostitution Act 2011 section 22(b) in 26 respect of the person. 27 (3) Subsection (2) does not apply to a person who, at the 28 time the injury occurred, was acting as a prostitute 29 and -- 30 (a) had not reached 18 years of age; or page 139 Prostitution Bill 2011 Part 13 Amendments to other Acts s. 192 1 (b) was working under coercion. 2 (4) A self-employed prostitute is not a worker for the 3 purposes of this Act. 4 5 (3) In section 22 delete "If it" and insert: 6 7 (1) If it 8 9 (4) At the end of section 22 insert: 10 11 (2) The failure by a worker who is a prostitute to comply 12 with the Prostitution Act 2011 section 31(2), 32(1), 13 33(1) or 34(1) amounts to serious and wilful 14 misconduct for the purposes of subsection (1)(c) unless 15 the claimant proves that there was a reasonable excuse 16 for the failure. 17 18 (5) After section 31F(7) insert: 19 20 (8A) Despite subsection (6), a worker is entitled to 21 compensation under this Division in respect of an 22 impairment that is AIDS if the impairment resulted 23 from taking part in an act of prostitution in the course 24 of the worker's employment as a prostitute and when 25 the act of prostitution occurred -- 26 (a) it occurred in a place to which a current 27 operator's licence applied and either -- 28 (i) the worker held a current prostitute's 29 licence (general); or 30 (ii) there had been compliance with the 31 Prostitution Act 2011 section 22(b) in 32 respect of the worker; page 140 Prostitution Bill 2011 Amendments to other Acts Part 13 s. 193 1 or 2 (b) the worker -- 3 (i) had not reached 18 years of age; or 4 (ii) was working under coercion. 5 (8B) In subsection (8A) the following terms have the 6 meaning given to them in the Prostitution Act 2011 7 section 3 -- 8 act of prostitution 9 operator's licence 10 prostitute 11 prostitute's licence (general) 12 13 193. Working with Children (Criminal Record Checking) Act 2004 14 amended 15 (1) This section amends the Working with Children (Criminal 16 Record Checking) Act 2004. 17 (2) In Schedule 2 delete the item relating to the Prostitution 18 Act 2000 and insert: 19 Prostitution Act 2011 s. 36 Causing, permitting, or seeking to induce child to act as prostitute s. 37 Obtaining payment for prostitution by child s. 38 Agreement for prostitution by child 20 21 194. Young Offenders Act 1994 amended 22 (1) This section amends the Young Offenders Act 1994. page 141 Prostitution Bill 2011 Part 13 Amendments to other Acts s. 194 1 (2) In Schedule 2 delete item 2A and insert: 2 2A. Prostitution Act 2011 s. 11 Seeking to induce person to act as prostitute s. 36 Causing, permitting, or seeking to induce child to act as prostitute s. 37 Obtaining payment for prostitution by child s. 38 Agreement for prostitution by child 3 page 142 Prostitution Bill 2011 Offences relevant to granting, renewing operator's or Schedule 1 manager's licence 1 Schedule 1 -- Offences relevant to granting, renewing 2 operator's or manager's licence 3 [s. 55(3)(d)] 4 The offences for the purposes of section 55(3)(d)(i) and (ii) are as follows -- 5 Censorship Act 1996 (repealed) 6 s. 60 7 Child Welfare Act 1947 (repealed) 8 s. 108(1) 9 Children and Community Services Act 2004 10 s. 192(1) or (2) 11 Classification (Publications, Films and Computer Games) Enforcement 12 Act 1996 13 the deleted s. 60 14 s. 101 15 The Criminal Code 16 s. 181 17 s. 186 18 s. 187 19 s. 204A 20 s. 204B 21 s. 217 22 s. 218 23 s. 219 24 s. 220 25 s. 279 26 s. 280 page 143 Prostitution Bill 2011 Schedule 1 Offences relevant to granting, renewing operator's or manager's licence 1 s. 281 2 s. 292 3 s. 293 4 s. 297 5 s. 306 6 s. 320(2) or (3) 7 s. 321(2) or (3) 8 s. 321A(4) 9 s. 324 10 s. 325 11 s. 326 12 s. 327 13 s. 328 14 s. 329 15 s. 330(2) or (3) 16 s. 331B 17 s. 331C 18 s. 331D 19 s. 332 20 s. 333 21 s. 338A 22 s. 338B 23 s. 338C 24 s. 343 25 s. 396 page 144 Prostitution Bill 2011 Offences relevant to granting, renewing operator's or Schedule 1 manager's licence 1 s. 397 2 s. 398 3 s. 409 4 s. 563A 5 Criminal Property Confiscation Act 2000 6 s. 50(1) 7 Criminal Code Act 1995 (Commonwealth) 8 s. 480.4 9 s. 480.5 10 11 12 page 145 Prostitution Bill 2011 Defined Terms Defined Terms [This is a list of terms defined and the provisions where they are defined. The list is not part of the law.] Defined Term Provision(s) 3 unrelated adults ......................................................................................... 131(4) act as a prostitute...................................................................................................3 act of prostitution ..................................................................................................3 applicant......................................................................................................... 52(1) approved ...........................................................................................................127 approved health and drug management plan....................................... 73(3), 73(4) authorised person ................................................................................................92 being involved in prostitution ...................................................................... 165(1) bodily fluid..........................................................................................................30 business.......................................................................................................... 63(1) caretaker's dwelling ............................................................................................79 CEO ......................................................................................................................3 child ......................................................................................................................3 City of Perth inner zone ......................................................................................79 client .................................................................................................................3, 4 closure notice ....................................................................................................129 closure offence provision ..................................................................................129 closure order .....................................................................................................129 commencement day ..........................................................................................178 Commissioner .......................................................................................................3 compliance purposes.................................................................................... 101(1) confidential police information.............................................................................3 conveyance................................................................................................... 107(1) Department............................................................................................................3 document...............................................................................................................3 dwelling ................................................................................................................3 employer ...........................................................................................................116 existing prostitution business ....................................................................... 181(1) health and drug management plan ......................................................................44 health information.......................................................................................... 35(1) in ...........................................................................................................................3 incapable person ......................................................................... 15(3), 44, 110(8) juvenile justice team .................................................................................... 101(1) land (CPIZ) .................................................................................................... 85(1) land (rest of WA) ........................................................................................... 86(1) licence ...................................................................................................................3 licence holder ........................................................................................................3 manage ..................................................................................................................3 manager.................................................................................................................3 page 146 Prostitution Bill 2011 Defined Terms manager's licence .................................................................................................3 managerial officer ........................................................................................ 173(1) medical practitioner ..................................................................................... 110(1) Minister........................................................................................... 152(1), 166(1) no licence area order ...........................................................................................87 notice.................................................................................................................127 notifiable matter ........................................................................71(2), 71(4), 71(6) offence ............................................................................................ 107(1), 152(1) offender................................................................................................. 9(3), 10(2) officer....................................................................................................... 44, 69(1) operate...................................................................................................................3 operator .................................................................................................................3 operator's licence ..................................................................................................3 order....................................................................................................................87 owner ....................................................................................................................3 particular applicant order ....................................................................................87 place......................................................................................3, 49(4), 51(3), 58(2) planning scheme .................................................................................................79 prescribed..............................................................................................................3 prohibited drug......................................................................................................3 prohibition order ...............................................................................................116 proprietary company .............................................................................................3 prostitute ...............................................................................................3, 4, 21, 22 prostitute's licence (general).................................................................................3 prostitute's licence (self-employed)......................................................................3 prostitution ........................................................................................................3, 4 prostitution business .............................................................................................3 protected person........................................................................................... 110(7) protected place ....................................................................................................79 public place ...........................................................................................................8 refuse.............................................................................................................. 29(1) registered nurse ............................................................................................ 110(1) relevant charge ............................................................................................. 113(3) relevant juvenile justice team matter ........................................................... 113(3) relevant person ..................................................................................................116 repealed Act ......................................................................................................178 residential area ....................................................................................................79 respondent.................................................................................................... 145(4) responsible person........................................................................................ 110(8) responsible planning authority ......................................................................44, 79 restraining order ................................................................................................139 self-employed prostitute........................................................................................3 sheath ..................................................................................................................30 specified ...................................................... 116, 127, 129, 143(4), 154(1), 162(1) sponsorship .................................................................................................... 17(1) page 147 Prostitution Bill 2011 Defined Terms STI ......................................................................................................................30 STI-risk contact...................................................................................................30 strip search ................................................................................................... 110(8) undercover officer........................................................................................ 152(1) WAPC.................................................................................................................79 work ......................................................................................................................3
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