Decriminalisation of the sex work industry and the Queensland planning framework

Prior to the decriminalisation of sex work, a business that had two or more people working as sex workers was defined as a ‘brothel’ in the Planning Regulation 2017.  This definition relied on the definition under the Prostitution Act 1999 (Prostitution Act):

Brothel:

“premises made available for prostitution by two or more prostitutes at the premises.”

To lawfully operate a brothel a development approval was required from the relevant local government area. If the application was impact assessable, public consultation was required.

The assessment of an application for a brothel was made against relevant assessment benchmarks in Schedule 10 of the Planning Regulation.

The Planning Regulation allowed for local government to prohibit development applications for brothels under certain circumstances, including where a town population is less than 25,000 and the Minister for Planning approved the prohibition.

A sole operator (a single sex worker who works either from home or on a call out basis) was different to a brothel and did not require any licensing by the Queensland government for either in-house or outcall services.

The planning framework also did not regulate or prohibit a sole operator.

A sole operator falls under the definition of a ‘home-based business’ and was regulated by a local planning scheme like any other home-based business.

A sole operator sex worker who employs a licensed security guard for safety was still considered a sole operator under the former legislative framework.

The planning framework supports the implementation of the broad recommendations made by the Queensland Law Reform Commissions report A decriminalized sex work industry for Queensland which was released in March 2023. The amendment supports the report by ensuring the core focus is on treating a sex work business the same as any other business and considers the safety of people working in the industry with regards to how it will operate.

The planning framework focuses on supporting the following recommendations:

• Recommendation 15 – removal of the definition and restrictions of a brothel and consideration of where sex work business fits as a land use term.
• Recommendation 16 – whether new administrative definitions are required to support any land use terms
• Recommendation 17 – removal of the prohibitions of brothels
• Recommendation 18 – treatment of all sex-work business the same as other businesses
• Recommendation 19 - determining what should be set as a state or local level assessment benchmarks
• Recommendation 20 – determining the approximate level and type of guidance local government will require to support the privacy of sex workers
• Recommendation 21 – provision of transitional arrangements to support unlawful brothels to become lawful
• Recommendation 24 – protection of existing use rights of lawfully operating brothels at the time of commencement of any changes

The decriminalisation of sex work in Queensland ensures that a sex work business is treated the same as any other business. This means a sex work business can now seek to establish anywhere that is appropriate for any other business, such as a home-based business or a shop.

Under the changes to the planning framework, a sex work business may now operate as a home-based business within a residential premise or as a shop subject to relevant requirements set by the state and the provisions in a local planning scheme which determine whether a development approval is required or not.

The changes to the planning framework reflect the recommendations of the Queensland Law Reform Commission Report and the Queensland Government’s policy to decriminalise sex work by defining a sex work business as either a ‘home-based business’ or ‘shop’ for the purpose of land use planning. These will then be assessed through the development assessment process, as relevant, like any other business.

Limiting all home-based businesses to a maximum of code assessment means that no public consultation is required and there is no ability for third party appeals to be made to the Planning and Environment Court.

A sex work business may now operate as a home-based business within a residential premise or as a shop subject to state and local government requirements and development assessment where necessary.

Prior to the amendments taking effect, an unlawful sex work business was considered a development offence under the Planning Act 2016. To support existing unlawful sex work businesses to become compliant with planning laws and align with the recommendations in the Queensland Law Reform Commission report, an existing unlawful sex work business will now have 12 months from the 2 August 2024 to seek any necessary planning advice and make a planning application, where required.

During this time, a local government cannot commence compliance action. However, a local government will be able to take action against an unlawful sex work business that has commenced operation following the end of this moratorium period in the same way it can for any other use.

The changes also ensure that where an existing unlawful sex work business lodges a development application to become compliant, the information they provide as part of this application cannot be used as (or as a springboard to obtain) evidence they have committed a development offence before the amendments took effect. This is to encourage sex-work businesses to become compliant with the planning laws.

Additional information is available in the guidance ( 240.0 KB).

During the 12-month moratorium period from 2 August 2024, an unlawful sex work business is encouraged to seek appropriate development approval, where required, without risk of enforcement or compliance action from a local government.

A local government will however still be able to undertake enforcement and compliance action against any already lawfully operating sex work business (if they commit an offence during the moratorium period) as it would at any other time.

Additional information is available in the guidance ( 240.0 KB).

Recommendation 18 of the Queensland Law Reform Commission report ensure all sex work business are treated the same as other businesses.

This means that a sex work business when a ‘home-based business’ or ‘shop’ won’t be subject to any specific requirements to the sex work but may be subject to requirements for general separation distances similar to any other business under a local planning scheme, where relevant.

A.If a sex work business seeks to set up as a home-based business and is compliant with certain planning requirements under the Planning Regulation 2017 and the local planning scheme, they will be accepted development and not require a development approval.

The state regulates the number of workers and visitors to the premises at a time and all other matters will remain regulated by the local government, the same as any other application for a home-based business to ensure a material change of use cannot be misused to target a sole operator sex work business where operating as a home-based business.

Where the use does not comply with either the state or local government provisions for accepted development, they will need to lodge a development application for code assessment with the local government which will be assessed the same as any other application.

Public notification of a development application is only required for impact assessable development applications.

Where a sex work business for a home-based business is categorised as either accepted or code assessable development, public notification is not required.

A sex work business for a home-based business can not be made impact assessable. This is to ensure that a sex work business is not subject to vexatious submissions and appeals.

The intent of the Queensland Law Reform Commission Report Recommendation 18 is that ‘Sex-work businesses should be treated similarly to other businesses’.

The planning framework ensures any provisions set by a local government for a home-based business or a shop, where for a sex work business, are the same as any other business.

A sex work business will be subject to planning requirements for a home-based business or a shop depending on which use it best fits where relevant.

This may include requirements for matters such as hours of operation which are determined by the local government. A local government, however, cannot treat sex work business in its planning scheme any differently from the way they treat any other business.

For example, a local planning scheme may set hours of operation for home-based businesses for between 8am-6pm Monday to Saturday except where work is office based activities such as bookwork.